RECENT DEVELOPMENTS: INDIANA FAMILY LAW
MICHAEL G. RUPPERT *
JOSEPH W. RUPPERT **
JONI L. SEDBERRY ***
INTRODUCTION
This Article will consider the more important developments in the commonly
recognized aspects of Indiana’s vast body of family law, specifically recent cases
and statutes concerning dissolution of marriage, paternity, child custody, child
support, and adoption.1
I. DISSOLUTION OF MARRIAGE
Some noteworthy dissolution of marriage cases decided by the Indiana courts
during the current survey involved contested property distributions, post-nuptial
agreements, expert witnesses, enforcement of property settlements, and spousal
maintenance.
A. Property Distribution
1. Marital Asset Issues.—Determination of the marital estate is the first of
* Partner, Ruppert & Schaefer, P.C. B.A., 1974, Indiana University; J.D., 1977, Cleveland
Marshall College of Law, Cleveland, Ohio. The Author has received the designation of Certified
Indiana Family Law Specialist from the Indiana Family Law Certification Board.
** Associate, Ruppert & Schaefer, P.C. B.A., 1973, Purdue University; J.D., with
distinction, 1979, St. Mary’s University School of Law, San Antonio Texas.
*** Associate, Ruppert & Schaefer, P.C. A.S., 2000, Indiana University; B.S., with
distinction, 2002, Indiana University; J.D., 2005, Family Law Concentration, Valparaiso University
School of Law, Valparaiso, Indiana.
1. The statutes covering these topics are located primarily in thirteen articles of title 31 of
the Indiana Code. See IND. CODE §§ 31-9 to -21 (2004 & Supp. 2007). Specifically omitted from
this Article are cases or statutory developments in child protection services, IND. CODE §§ 31-25
to -28 (Supp. 2007), and cases involving juvenile justice which arise under the eleven articles
specifically referred to as “Juvenile Law” at IND. CODE §§ 31-30 to -40 (2004 & Supp. 2007).
More than 200 specific definitions pertaining to title 31, sometimes applying to both family and
juvenile law, sometimes one or the other, are located at IND. CODE § 31-9-2 (2004 & Supp. 2007).
Further, at least fifteen other titles of the Indiana Code contain provisions concerning criminal
offenses against children and family, marriage and family therapists, trust and fiduciaries,
guardianships, and other family-related topics. Every legal proceeding in Indiana between parents
involving child support or visitation with their children is governed by the Indiana Supreme Court’s
Child Support Rules and Guidelines and the Parenting Time Guidelines. Federal legislation
involving taxes, bankruptcy, and distribution of retirement benefits can be a consideration in almost
any case involving property settlement, child support, or spousal maintenance. Federal law can also
impact adoptions of Native Americans, state laws regarding parental kidnapping, and states’
obligations concerning enforcement of child support obligations, to mention just some aspects of
state family law influenced by federal authority.
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three broad questions encompassing the substantive law of property distribution
in a dissolution of marriage action: Is it marital property? What is the value of
the property? How should the property be divided?2
Of recent concern is whether Granzow v. Granzow3 seeks to exclude from the
marital estate property interests acquired by the spouses’ joint efforts where the
interests vest after filing but before the actual finalization of the dissolution
proceeding.4
2. “Property,” for purposes of dissolution of marriage, “means all the assets of either or both
parties, including” present rights to pensions and retirement benefits; vested rights to pensions or
retirement benefits payable after the dissolution of marriage; and, disposable military retired pay.
IND. CODE § 31-9-2-98(b) (2004). A dissolution court is required to divide all of the property of
the parties whether it was owned by either prior to the marriage; acquired by either in his or her
own right after the marriage but before final separation of the parties; or, acquired by the parties
through their joint efforts. Id. § 31-15-7-4(a). In Thompson v. Thompson, 811 N.E.2d 888, 912-15
(Ind. Ct. App. 2004), the court succinctly set forth Indiana’s “one-pot” theory of the marital estate.
Included within the marital estate is all of the property acquired by the joint efforts of the parties.
Id. at 914. With certain limited exceptions this “one-pot” theory “‘specifically prohibits the
exclusion of any asset from the scope of the trial court’s power to divide and award.’” Id. (quoting
Ross v. Ross, 638 N.E.2d 1301, 1303 (Ind. Ct. App. 1994)). Only property acquired by an
individual spouse after the final separation date is excluded from the marital estate. Id. In short,
a spouse may not select which of the parties’ assets are to be considered marital property, absent
a valid premarital agreement. See Huber v. Huber, 586 N.E.2d 887, 887-89 (Ind. Ct. App. 1992).
The Indiana Supreme Court has held that these statutes create a presumption that all property
interests of either or both parties are subject to division and that “[t]he party who seeks to rebut the
presumption, i.e., the party who seeks to have property not included (or at least not divided), bears
the burden of demonstrating that the statutory presumption should not apply.” Beckley v. Beckley,
822 N.E.2d 158, 163 (Ind. 2005); see also Joseph W. Ruppert & Joni L. Sedberry, Recent
Developments: Indiana Family Law, 40 IND. L. REV. 891, 891-97 (2007); Joseph W. Ruppert &
Michael G. Ruppert, Recent Developments: Indiana Family Law, 39 IND. L. REV. 995, 995-1001
(2006); Michael G. Ruppert & Joseph W. Ruppert, Recent Developments: Indiana Family Law, 38
IND. L. REV. 1085, 1085-1089 (2005).
3. 855 N.E.2d 680 (Ind. Ct. App. 2006).
4. Under Indiana Code section 31-9-2-46, the date of “final separation” in a divorce
preceding for purposes of property distribution means the date the petition for dissolution of
marriage is filed. IND. CODE § 31-9-2-46 (2004). It could be an earlier date if a legal separation
proceeding was filed first and converted to a dissolution of marriage proceeding. Id. However, to
limit a trial court to distributing property acquired only prior to the date of filing would limit the
statutory mandate of the trial court to divide all of the property of the marriage. Indiana Code
section 31-15-7-4(a) (2004) sets the property that the trial court must divide:
In an action for dissolution of marriage under [Indiana Code section] 31-15-2-2, the
court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
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In Granzow the parties were married in 1983 at which time the husband had
worked for his employer for more than nine years. In August 2003, he filed a
petition for dissolution of marriage. The proceeding was bifurcated.5 The
marriage was dissolved in February 2004, and the parties’ partial settlement
agreement, which reserved for a final hearing all issues involving husband’s
pension, was approved by the trial court. The husband was vested in his
company’s pension at the time of the filing of his petition and at the time of the
decree dissolving the parties’ marriage.6 However, a few days after the
dissolution decree and partial settlement agreement, the husband reached his
thirty-year employment anniversary with his employer, which entitled him to a
lump sum enhancement of more than a quarter of a million dollars over the value
of his pension on the date of filing.7 The husband soon thereafter retired.8 The
final hearing on property distribution was more than a year after the retirement;
and, the trial court excluded the enhanced pension benefit from the marital pot
in its order dividing the property.9 The wife appealed, arguing that the
enhancement portion of the pension was a marital asset, even though the
entitlement to it did not occur until after the filing of the petition for dissolution
of marriage and after the court’s decree dissolving the marriage (but before the
final hearing on property distribution), because the enhancement was attributable
to the joint efforts of the parties.10
Stating that the wife had failed to cite any Indiana cases holding that a
pension enhancement or other asset vesting after the date of filing could be
included in the marital estate subject to division, the court stated a surprisingly
rigid view of the marital pot which seems to conflict with an Indiana Supreme
(3) acquired by their joint efforts.
Id. § 31-15-7-4(a). The Indiana Supreme Court has made it clear that the foregoing represents three
classes of property and that the third class may cause inclusion of pension rights in the marital pot
where they vest after the date of filing but before the decree dissolving the marriage. See In re the
Marriage of Adams, 535 N.E.2d 124, 126-27 (Ind. 1989) (discussing IND. CODE § 31-1-11.5-11 (b)
(1988), the predecessor to IND. CODE § 31-15-7-4 (2004)).
5. Under Indiana Code section 31-15-2-14, a divorce proceeding may be bifurcated, thereby
allowing the parties to be divorced and have non-contested issues approved by the court, while
reserving for hearing at a later date contested issues. IND. CODE § 31-15-2-14 (2004). The order
dissolving the marriage in the first stage of the bifurcated proceeding is not provisional; it is final.
While the divorce action is not considered completed until the second part involving the contested
issues is completed, the orders issued in the first part are not voidable. Thus, for example, where
a party dies after the dissolution of the parties’ marriage in a bifurcated proceeding, but before a
final hearing on property, the court is not deprived of jurisdiction over the property issues. See
Beard v. Beard, 758 N.E.2d 1019, 1025 (Ind. Ct. App. 2001).
6. Granzow, 855 N.E.2d at 682.
7. Id.
8. Id.
9. Id.
10. Id. at 683-84.
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Court decision and other appellate authority.11 Indeed, Granzow appears to
completely subordinate joint effort property to that which is vested at initiation
of the divorce: “Wife essentially asks us to ignore Indiana Code Sections 31-9-298(b) and 31-15-7-4(b), which together provide that the dissolution court shall
only divide property owned as of the date the petition is filed. This we cannot
do.”12 Thus, the Granzow court flatly refused to acknowledge the last of the
three categories of property in Indiana Code section 31-15-7-4(a): property
owned by either before the marriage; property acquired by either in his or her
own right after the marriage and before final separation; or, property acquired by
joint efforts.13
Another way to look at Granzow is that the court of appeals mandated the
“before final separation” language in the second category of property to all three
categories. Arguably, Granzow is not at odds with Adams or Kirkman because
the enhancement did not vest until after the dissolution of the parties’ marriage,
albeit before the final hearing on property distribution. Granzow did not afford
itself that kind of leeway. Instead, the decision seems to conflict with Adams,
Kirkman, and appellate court decisions following their holdings.14
Hill v. Hill,15 involved a husband’s appeal of the trial court’s property
distribution on the grounds, in part, that the court should not have included any
part of certain assets that were awarded to him in the marital pot. His first
argument for exclusion concerned his pension, which was in pay status. He
contended that, since he could not receive his monthly payments in a lump sum
on demand, but rather had to wait for them, the payments did not fit the
definition of pensions under the property definition statutes.16 His next exclusion
argument was that certain real estate he had acquired during the marriage should
not be included in the marital pot because it was acquired with funds that he
brought into the marriage.17 His final argument was that certain Florida real
11. See Kirkman v. Kirkman, 555 N.E.2d 1293, 1294 (Ind. 1990) (following the rule in In
re Marriage of Adams, 535 N.E.2d 124, 126-27 (Ind. 1989), in holding that a pension or
retirement benefit becoming vested prior to the final dissolution decree could be divided by the
trial court).
12. Granzow, 855 N.E.2d at 684. Indiana Code section 31-15-7-4(a)(3) requires the court
to divide property acquired by joint efforts. Neither Indiana Code section 31-9-2-98(b) or section
31-15-7-4(b) (2004), individually or jointly, place any limit on the court’s ability to distribute
property interests arising through spouses’ joint efforts which vest after the date the petition is filed
but before finalization of the divorce.
13. IND. CODE § 31-15-7-4(a) (2004).
14. For cases following the Adams, 535 N.E.2d at 125-27, and Kirkman, 555 N.E.2d at 1294,
holdings regarding three classes of divisible property, which would permit division of assets vesting
after filing the petition of dissolution but before the actual decree, see Wyzard v. Wyzard, 771
N.E.2d 754, 757-58 (Ind. Ct. App. 2002), and Skinner v. Skinner, 644 N.E.2d 141, 146 (Ind. Ct.
App. 1994); see also Hodowal v. Hodowal, 627 N.E.2d 869, 873 (Ind. Ct. App. 1994).
15. 863 N.E.2d 456, 458 (Ind. Ct. App. 2007).
16. Id. at 460-61.
17. Id. at 461.
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estate should not have been included in the marital pot because he did not own
the property—even though he made the down payment and signed for the loan
on the property which he deeded to his son after the date of the filing for
dissolution of marriage.18 The Hill court dispatched the husband’s arguments
and, in contrast to Granzow, favorably acknowledged the three categories of
marital property which a trial court is to divide in a dissolution of marriage:
We reiterate that all marital property goes into the marital pot for
division, even if it was owned by one spouse prior to the marriage or
purchased with funds that one spouse brought into the marriage. These
properties were properly included in the marital pot.
Husband also argues that the . . . real estate in Florida [is] not marital
property and therefore should not have been included in the marital
property because he has never owned the property. Husband did state at
the final hearing that he only helped his son from a previous marriage to
buy the property by giving him the down payment and signing for the
loan. However, he contradicted himself when he testified that he himself
bought one parcel for $54,000.00 and the other parcel for $47,000.00 or
$48,000.00. Furthermore, Wife testified that the Florida real estate was
purchased during the marriage, and Ira Hill testified that Husband
testified that he “owned two houses” in Florida. Finally, though husband
apparently intended to transfer the Florida real estate to his son from a
previous marriage, the deeds evidencing the transfer were not recorded
until . . . eleven days after Wife filed for dissolution. This evidence is
sufficient to support the trial court’s inclusion of the Florida real estate
in the marital pot.19
England v. England20 involved a former husband’s appeal of the trial court’s
property distribution, claiming as error the inclusion of the value of his current
right to occupy property for the rest of his life because the property was owned
by a third party and his right to reside on it could be terminated before the end
of his life.21 The England court held that it was proper for the value of the
husband’s continued right to live on the property during his lifetime to be
considered by the trial court in dividing the marital pot.22 In rejecting that a
potential defeasance should prevent consideration of the property, the court
stated:
To the extent Husband’s interest in the property is defeasible, he for the
most part controls the defeasance. In [earlier cases], the defeasance
would occur because of an act over which the remaindermen had no
18.
19.
20.
21.
22.
Id.
Id. (citations omitted).
865 N.E.2d 644 (Ind. Ct. App.), trans. denied, 878 N.E.2d 205 (Ind. 2007).
Id. at 648-49.
Id. at 649.
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control—death or change of beneficiary. Here, Husband loses his
interest in the property if he abandons the property, ceases to use it as his
primary residence, or opposes [the lessor’s] plans to expand its landfill,
all of which are choices Husband would make of his own accord.
Husband also loses his interest if both dwellings on the property are
destroyed or become uninhabitable. Although it is true, as Husband
points out, that the dwellings could be destroyed by fire or weather
tomorrow, it is also true that they may never be destroyed and Husband
will live on the property virtually rent-free for the remainder of his life.
Finally, Husband also loses his interest when he dies, but in that case, it
is possible that he may have enjoyed the use of the property for a
nominal rent up to the time of his death.23
In Grathwohl v. Garrity,24 the trial court expressly excluded from the marital
estate real estate that the husband inherited from his mother and real estate in
which the wife had a joint interest with her son by a prior marriage which also
was inherited from her mother.25 At trial, the husband took the position that the
inherited real estate of both parties “should be included in the marital pot, but set
off separately to each party.”26 However, the wife argued that her inherited
property should not be part of the marital estate at all because it was merely a
joint tenancy with her son.27 On appeal, the wife argued the same, i.e., that the
court erred by excluding the husband’s real estate even though it also excluded
hers.28 In its analysis, the court found that the trial court’s exclusion of both
pieces of inherited property on the basis of Stratton v. Stratton29 was misplaced
because in Stratton the parties stipulated to the exclusion of the marital property
from the marital estate.30 Noting that “[i]t has been repeatedly held that [the
Indiana Code] requires inclusion in the marital estate of all property owned by
the parties before separation, including inherited property,” the court of appeals
stated that it was clear error to exclude the husband’s property from the marital
estate.31 Regarding the wife’s property, the court considered it a bit “more
complicated,” but disposed of the wife’s joint tenancy argument by noting that
a joint tenancy constitutes a present posessory interest.32
Regarding [the wife’s] joint tenancy argument, as a general rule an
asset of a party should be included in the marital estate so long as the
party has a present interest of posessory value in the asset. “When a
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
Id. at 650 (footnote omitted).
871 N.E.2d 297 (Ind. Ct. App. 2007).
Id. at 299-300.
Id. at 299.
Id.
Id. at 301.
834 N.E.2d 1146 (Ind. Ct. App. 2005).
Grathwohl, 871 N.E.2d at 301 n.4.
Id. at 301-03.
Id. at 301.
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joint tenancy is created, each tenant acquires ‘an equal right . . . to share
in the enjoyment of the land in their lives.’” A joint tenancy relationship
confers equivalent legal rights on the tenants that are fixed and vested at
the time the joint tenancy is created. Additionally, each joint tenant may
sell or mortgage his or her interest in the property to a third party. Thus,
[the wife] has a present right to enjoy the use of the Michigan property
and the right to sell or mortgage her interest in it. This is sufficient to
render her joint tenancy interest a present posessory interest for purposes
of including the Michigan property in the marital estate. The trial court
erred as a matter of law in excluding [the wife’s] joint tenancy interest
in the Michigan property from the marital estate.33
In Griffin v. Griffin,34 the court held that the portion of a spouse’s military
retirement pay that had been waived to receive veteran’s disability payments was
not subject to equitable distribution.35 In Griffin, the parties agreed that they
would split the husband’s retirement income from the military.36 The court
approved their agreement.37 Thereafter, the husband was awarded Veteran’s
Administration (“VA”) disability benefits, which he applied for prior to the
settlement agreement.38 Federal law expressly forbids distribution of VA
benefits and requires a reduction of the military retirement income which, in
effect, is replaced by the VA benefits.39 In a post-decree enforcement
proceeding, the wife sought and was granted an order requiring the husband to
pay her half of his retirement income from the military, including his disability
payments.40 On appeal, the husband argued that the order violated the U.S.
Supreme Court’s decision in Mansell.41 The wife did not file an opposing brief.42
The Indiana Court of Appeals agreed with the husband that the trial court’s
decision was clear legal error.43 It did, however, state in a footnote “that many
other jurisdictions have addressed the resulting situation in this case. The
majority view has been described as permitting the use of equitable remedies to
prevent a spouse from unilaterally and voluntarily diminishing military
retirement benefits awarded to the other spouse in a dissolution decree.”44
Basically, those decisions hold that the agreement or order provides the non-
33. Id. at 301-02 (citations omitted) (quoting Cunningham v. Hastings, 556 N.E.2d 12, 13
(Ind. Ct. App. 1990)).
34. 872 N.E.2d 653 (Ind. Ct. App. 2007).
35. Id. at 658 (citing Mansell v. Mansell, 490 U.S. 581 (1989)).
36. Id. at 654.
37. Id.
38. Id. at 655.
39. Id. at 654-55.
40. Id. at 658.
41. Id. at 655, 657.
42. Id. at 656.
43. Id. at 659.
44. Id. at 659 n.2.
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military spouse with a vested interest in her portion of the military retirement
benefits and that the vested interest cannot be unilaterally diminished by the
military spouse.45
In Helm v. Helm,46 the court held that, to the extent the trial court intended
to exclude the final two payments of a three million dollar lottery prize payable
over twenty years, which the husband won prior to the marriage, it committed
error because the husband’s right to receive the final two payments after the date
of filing was a vested property interest that he brought into the marriage.47
2. Asset Valuation Issues.—Galloway v. Galloway48 provides a good
statement of the burden for going forward with the evidence of providing the
value of an asset and the consequences of failing to do so. In Galloway, the
husband and wife, both of whom were apparently represented by counsel,
requested conflicting distributions of the marital property as it related to the
wife’s pension which was in pay status at the time of final hearing.49 The
husband, who was self-employed as a partner in an auction business, requested
an even split of the pension.50 The wife testified that she did not want the
husband to receive any of the pension because she had worked for it for over
thirty-one years and had helped him in his business, while he was not a good
business man and went from job to job without developing any retirement
savings or benefits.51 However, neither party presented any evidence of the value
of the pension or the value of the husband’s interest in the auction business.52
The trial court awarded the partnership interest to the husband and the pension
in its entirety to the wife.53 The remaining marital property was divided
equally.54 The husband appealed the trial court’s decision, contending that it was
an abuse of discretion because the trial court’s distribution resulted in more than
a fifty percent share to the wife, who he contended did not present evidence to
rebut the statutory presumption of an equal division.55
In what arguably amounts to reweighing the evidence, the Indiana Court of
Appeals agreed with the husband’s assertion that the wife failed to rebut the
statutory presumption,56 reasoning that it was the parties’ obligation to present
evidence of the value of the marital property—not the trial court’s obligation.57
45. Id. (citing In re Marriage of Nielsen, 729 N.E.2d 844, 849-50 (Ill. App. Ct. 2003);
Johnson v. Johnson, 37 S.W.3d 892, 897-98 (Tenn. 2001)).
46. 873 N.E.2d 83 (Ind. Ct. App. 2007).
47. Id. at 88.
48. 855 N.E.2d 302 (Ind. Ct. App. 2006).
49. Id. at 304.
50. Id.
51. Id. at 305.
52. Id. at 304.
53. Id.
54. Id.
55. Id. at 304-05.
56. Id. at 306.
57. Id. at 305-06.
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Thus, the court held that the husband waived the issue:58
We remind the parties that the burden of producing evidence as to the
value of the marital property rests squarely “‘on the shoulders of the
parties and their attorneys.’” In Perkins, this Court rejected the
husband’s claim that the trial court’s order dividing the marital estate
was vague and incomplete, relying on the principal that “‘any party who
fails to introduce evidence as to the specific value of the marital property
at a dissolution hearing is estopped from appealing the distribution on
the ground of trial court abuse of discretion based on that absence of
evidence.’”
We are guided by the reasoning of Perkins, which recognized the
validity of protecting the trial court from “‘the risk of reversal if it
distributes the marital property without specific evidence of value.’”59
England v. England,60 as discussed previously, also dealt with a challenge by
the husband to the trial court’s valuation of his present posessory interest to live
on the property in question for the remainder of his life, subject to defeasance for
reasons primarily under his control. In England, the wife called a certified public
accountant (“CPA”) to testify as to the value of the life-long lease of the
property.61 The CPA, starting with the husband’s opinion of the monthly value
of occupancy of his residence, added value for the remaining acreage and
58. Id. at 305. The trial court did justify its award of the entire pension to the wife and, thus,
a greater share of the marital pot on the bases that the husband had failed to acquire any retirement
benefits even though he was gainfully employed through all of the marriage; that the husband quit
the same employer while he allowed the wife to accrue her substantial retirement benefits; and that
the husband who was still employed was free to earn as much as he could, limited only by his
ability and willingness to work. Id. Apparently, the appellate court felt that the wife’s failure to
present evidence regarding her ability to work and earning capacity, and her failure to claim that
the husband’s actions during the marriage constituted dissipation, amounted to a failure to present
sufficient evidence for deviation from the presumption of an even distribution under Indiana Code
section 31-15-7-5. The problem with the court reweighing the evidence and concluding that the
evidence was not sufficient to justify deviation is that the facts in Galloway become nearly identical
to the facts in Schueneman v. Schueneman, 591 N.E.2d 603, 608 (Ind. Ct. App. 1992), a case in
which no evidence had been presented as to the value of the wife’s pension. In Schueneman, the
court stated that “it is likely that the plan has some value and, by awarding it to [the wife], the trial
court made an unequal distribution of the marital estate without making findings why a deviation
from a 50/50 split was just and reasonable.” Id. at 609. In Schueneman, however, the appellate
court remanded to the trial court for further consideration, noting that the trial court was free to
order a percentage of future pension payments to the husband in light of the fact that division of the
plan would be speculative without evidence of the value. Id.
59. Galloway, 855 N.E.2d at 306 (quoting Perkins v. Harding, 836 N.E.2d 295, 301-02 (Ind.
Ct. App. 2005)).
60. 865 N.E.2d 644, 650-51 (Ind. Ct. App.), trans. denied, 878 N.E.2d 205 (2007).
61. Id.
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buildings, multiplied the value by an average life expectancy to take into
consideration the husband’s parent’s rights to use the property, and then reduced
it to a present value.62 Noting that Indiana has long held that occupation of real
estate at low or no cost is a relevant consideration in dividing marital assets,63 the
England court reiterated the long standing principal that “a trial court has broad
discretion in determining the value of property in a dissolution action, and its
valuation will not be disturbed absent an abuse of that discretion.”64 The
husband essentially presented only his opinion at trial which ascribed merely
$150 per month in rental value to his occupancy of the property for life.65
Finding that the trial court had sufficient evidence upon which to value the
occupancy, the court held there was no abuse of its discretion in determining the
value.66
In Grathwohl v. Garrity67 the appellate court noted that its remand to the trial
court due to that court’s exclusion of the two inherited pieces of property without
any explanation for its reasoning could result in a situation where its nearly equal
distribution of property could become grossly unequal, depending upon the
relative values of the properties which were highly disputed at trial.
Accordingly, the court remanded with these instructions:
Thus, we cannot determine the actual total value of the marital estate and
the respective percentages of the estate that [the wife] and [the husband]
received; in other words, we cannot determine whether set off of the
inherited properties resulted in a significantly different division of the
estate than the 49/51 split reflected in the trial court’s order. We remand
for the trial court to include the parties’ inherited property interests in
the marital estate, to valuate those interests, and to recalculate the
division of those marital assets accordingly.68
3. Asset Distribution Issues.—More than two decades ago, after the Indiana
Supreme Court’s decision in Luedke v. Luedke,69 in which the court vacated a
decision of the Indiana Court of Appeals which would have created a rebuttable
presumption favoring the equal division of marital property, the Indiana
legislature amended the dissolution statute to include a rebuttable presumption
62. Id. at 646.
63. See Vadas v. Vadas, 762 N.E.2d 1234, 1236 (Ind. 2002); In re Dall, 681 N.E.2d 718,
722-23 (Ind. Ct. App. 1997); Hacker v. Hacker, 659 N.E.2d 1104, 1111 (Ind. Ct. App. 1995).
64. England, 865 N.E.2d at 651 (citing Hiser v. Hiser, 692 N.E.2d 925, 927 (Ind. Ct. App.
1998)). Additionally, the court cited the recent decision in Galloway for the proposition that “[t]he
burden of producing evidence as to the value of marital assets is upon the parties to the dissolution
proceeding.” Id. (citing Galloway, 855 N.E.2d at 306).
65. Id.
66. Id.
67. 871 N.E.2d 297, 302 (Ind. Ct. App. 2007).
68. Id. What makes this case substantially different from Galloway is that the parties
apparently did present greatly differing valuations of the wife’s property in Michigan.
69. 487 N.E.2d 133, 134 (Ind. 1985).
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that an equal division of marital property between the parties was just and
reasonable.70 In Hill v. Hill,71 discussed above, the husband’s appeal also
included a challenge to a division of the marital pot, arguing that the trial court
committed error by equally dividing the assets. However, in reaching its
decision, the trial court actually excised from its valuations of the marital
property portions of the total value attributable to amounts of the husband’s premarital assets used to acquire the marital property.72 In effect, the trial court
erroneously excised pre-marital assets by excluding a sum equivalent to their
value from the marital assets which were purchased with the pre-marital assets.73
Thus, the trial court’s “equal division” actually resulted in a greater distribution
to the husband.74 However, the court noted that the trial court, while not
supplying adequate reasoning for its exclusion of the value of pre-marital assets,
did provide sufficient reasoning for why it divided the property as it did.75 Thus,
the Indiana Court of Appeals held that the trial court did not abuse its discretion
in dividing the marital property by failing to give the husband even more than the
superior distribution it had given him.76
In Grathwohl v. Garrity,77 the wife complained on appeal, in addition to her
70. The most recent articulation of the presumption for equal division of marital property and
its rebuttal presumption is found at Indiana Code section 31-15-7-5, which provides as follows:
The court shall presume that an equal division of the marital property between the
parties is just and reasonable. However, this presumption may be rebutted by a party
who presents relevant evidence, including evidence concerning the following factors,
that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of
whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the
property is to become effective, including the desirability of awarding the family
residence or the right to dwell in the family residence for such periods as the court
considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or
dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
IND. CODE § 31-15-7-5 (2004).
71. Hill v. Hill, 863 N.E.2d 456, 461-62 (Ind. Ct. App. 2007).
72. Id.
73. Id. at 462.
74. Id. at 462-63.
75. Id. at 463.
76. Id. at 464.
77. 871 N.E.2d 297, 302 (Ind. Ct. App. 2007).
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argument that the court erred regarding the exclusion of husband’s inherited real
estate, that the trial court erred by not finding that the husband had committed
dissipation of marital assets.78 Apparently, however, the wife never asked the
trial court to find that the husband had dissipated assets:
If a party does not present an issue or argument to the trial court,
appellate review of the issue or argument is waived. “This rule protects
the integrity of the trial court, which should not be found to have erred
as to an issue or argument that it never had an opportunity to consider.”
Waiver may be avoided if the newly-raised issue was inherent in the
resolution of the case, the other party had unequivocal notice of the issue
below and had an opportunity to litigate it, or if the trial court actually
addressed the issue in the absence of argument by the parties. We do not
believe that any of these exceptions to the waiver rule applies in this
case.79
However, the court noted that, even if the issue had not been waived, it did
not see the complained-of behavior as constituting dissipation of marital assets.80
At trial, the wife complained that the husband had used his income and
inheritance for his own benefit to the exclusion of contributing to marital
expenses by purchasing a motorcycle, Conseco stock (which became worthless),
and spending money “remodeling and repairing the property he inherited from
his mother.”81 The court quickly pointed out that displeasure with a spouse’s
spending decisions does not necessarily constitute dissipation of marital assets.82
It stated:
Dissipation of marital assets includes the frivolous and unjustified
spending of marital assets. “The test for dissipation is whether the assets
were actually wasted or misused.” With respect to the motorcycle, its
value was included in the marital estate and [the wife] was awarded onehalf of its value. The money [the husband] spent to purchase it did not
completely disappear; [the wife] will be compensated for [the husband’s]
purchase. Additionally, [the wife] testified that she sometimes rode the
motorcycle with [the husband] before their separation. Thus, [the wife]
enjoyed the use of the marital asset for some time. With respect to the
Conseco stock, [the husband] is far from the only person who became
“stuck” with worthless stock in that company. If it had not lost all of its
value, it too would have been included in the marital estate. The fact
that [the husband] ultimately made a poor decision in purchasing the
stock does not render such purchase frivolous. Finally, we also cannot
78. See IND. CODE § 31-15-7-5(4) (2004).
79. Grathwohl, 871 N.E.2d at 302 (quoting Nance v. Miami Sand & Gravel, LLC, 825
N.E.2d 826, 834 (Ind. Ct. App. 2005)).
80. Id.
81. Id. at 303.
82. Id.
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say that the use of money to remodel and repair the property [the
husband] inherited from his mother constituted a frivolous expenditure.
The use of funds to improve the condition of what we have upheld is
clearly a marital asset (despite the fact of [the husband’s] inheritance) is
not wasteful.83
In short, a way to look at the issue of dissipation is not whether the use of funds
displeases a spouse, but whether it frivolously takes money out of the estate
without justifiable cause.84
B. Marital Settlement Agreements
1. Post-Nuptial Settlement Agreements.—There is very little appellate
authority regarding post-nuptial agreements. Augle v. Augle,85 a case involving
a “post-nuptial” agreement, stands for the proposition that, unless the agreement
provides otherwise, a trial court abuses its discretion where it modifies the
agreement in a subsequent dissolution of marriage without making findings of
“‘fraud, duress, other imperfections of consent, or manifest inequities.’”86
Several things are notable about this decision and others involving postnuptial agreements. First, the agreement in Augle, like the agreement in Pond,
was clearly executed in contemplation that the parties would eventually dissolve
their marriage.87 In Augle, the parties were married in 1970.88 They separated
in 2004, but agreed in their post-nuptial agreement not to file dissolution
proceedings until 2006.89 The agreement also adjusted all of their duties and
obligations to each other in contemplation of a dissolution of marriage.90 Upon
filing the petition for divorce, the trial court enforced all of the provisions of the
post-nuptial agreement, except a provision requiring the husband to maintain life
insurance on the wife until one of their deaths.91 The trial court deleted that
provision at the husband’s request, and the wife appealed.92 She contended that
the post-nuptial agreement was a settlement agreement under Indiana Code
section 31-15-2-17.93 Pond involved a similar sequence of events. In that case,
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
(a)
Id. (quoting Balicki v. Balicki, 837 N.E.2d 532, 540 (Ind. Ct. App. 2005).
Id.
868 N.E.2d 1146 (Ind. Ct. App. 2007).
Id. at 1148-49 (citing Pond v. Pond, 700 N.E.2d 1130, 1137 (Ind. 1998)).
Id. at 1147.
Id.
Id.
Id.
Id. at 1148.
Id. at 1147-49.
Id. at 1148. See IND. CODE § 31-15-2-17 (2004), which provides as follows:
To promote the amicable settlements of disputes that have arisen or may arise
between the parties to a marriage attendant upon the dissolution of their marriage,
the parties may agree in writing to provisions for:
(1) the maintenance of either of the parties;
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the parties began negotiating the terms for the settlement of their divorce long
before filing.94 Their agreement was completed and executed by both of them at
the time they filed.95 Included within their agreement was an ad terrorum clause
which provided that if a party challenged the post-nuptial agreement and lost, he
or she would pay the attorney’s fees of the other.96 The wife challenged the
agreement, but the trial court upheld all of the agreement except for the provision
requiring her to pay the husband’s attorney’s fees in the event that she
unsuccessfully challenged the agreement.97 Upon transfer, the Indiana Supreme
Court found that the agreement was an agreement of settlement attendant to a
divorce under Indiana Code section 31-15-2-17 and held that the trial court may
reject or modify a marital settlement agreement only if it finds “fraud, duress,
other imperfections of consent, or manifest inequities” pursuant to its prior
decision in Voigt v. Voigt.98
2. Modification Versus Clarification of Property Settlement Orders.—In
(2) the disposition of any property owned by either or both of the parties; and
(3) the custody and support of the children of the parties.
(b) In an action for dissolution of marriage:
(1) the terms of the agreement, if approved by the court, shall be incorporated and
merged into the decree and the parties shall be ordered to perform the terms; or
(2) the court may make provisions for:
(A) the disposition of property;
(B) child support;
(C) maintenance; and
(D) custody;
as provided in this title.
(c) The disposition of property settled by an agreement described in subsection (a) and
incorporated and merged into the decree is not subject to subsequent modification
by the court, except as the agreement prescribes or the parties subsequently
consent.
94. Pond v. Pond, 700 N.E.2d 1130, 1136-37 (Ind. 1998).
95. Id. at 1133.
96. Id. at 1135-36.
97. Id. at 1136-37.
98. Id. at 1137 (citing Voigt v. Voigt, 670 N.E.2d 1271, 1277-78 (Ind. 1996)). There appears
to be no recent Indiana decision upholding a “post-nuptial” agreement executed by parties not in
the contemplation of a divorce action which is filed shortly thereafter. In Flansburg v. Flansburg,
581 N.E.2d 430, 431-33 (Ind. Ct. App. 1991), a “reconciliation” agreement was upheld where the
parties executed the agreement setting forth their right to property, spousal maintenance, and
attorney’s fees in the event of a future dissolution of marriage and in consideration of a dismissal
of the pending dissolution action. In a later dissolution of marriage proceeding, after the prior one
had been dismissed, the wife challenged the reconciliation agreement which the trial court upheld.
Id. On appeal, the trial court was affirmed with the court stating: “We conclude that a
reconciliation agreement may be enforced as long as it is entered into freely and without fraud or
misrepresentation, or is not otherwise unconscionable.” Id. at 437.
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Robinson v. Robinson,99 the Indiana Court of Appeals reversed a trial court order
amending a qualified domestic relations order (“QDRO”) for the reason that it
constituted an improper modification of the parties’ settlement agreement. Like
property settlement agreements, which may not be modified except as provided
therein or for consent vitiating circumstances, court orders concerning property
distributions may not be revoked or modified except for fraud asserted within six
years of the entry of the order; however, the trial court retains jurisdiction to
clarify its orders.100 In Robinson, the parties’ marriage was dissolved in 1994.101
The decree approved their settlement agreement and QDRO which provided that
the wife would receive no more than $1423 per month from the husband’s future
pension payments, as the husband desired to limit the amount by which his future
payments would be reduced.102 Unfortunately, the husband did not realize that
a future pension administrator would reduce his pension by more than $1600 per
month in order to fund $1423 per month to the wife.103 When he retired, he
discovered the error.104 In other words, his settlement agreement with the wife,
while capping her benefit, incorrectly assumed that the cost of funding her
benefit out of his monthly benefit would be the same.105 The trial court granted
the husband’s request to modify the QDRO to provide that his monthly benefit
would not be reduced by more than $1423, i.e., that the wife would receive a
lower monthly benefit.106
On appeal, the court found the authority presented by the husband to be
inapposite to the circumstance before it, as those cases related to modification of
QDROs that failed to assign the risk or benefit of declines or increases in the
pension benefits due to market forces.107 The court found that the parties’
agreement was unambiguous and that they could have simply provided the
maximum reduction from the husband’s benefit would be $1423 per month.108
99. 858 N.E.2d 203, 208 (Ind. Ct. App. 2006).
100. Id. at 205-06. See also Indiana Code section 31-15-7-9.1, which provides:
(a) The orders concerning property disposition entered under this chapter (or [Indiana
Code section] 31-1-11.5-9 before its repeal) may not be revoked or modified,
except in case of fraud.
(b) If fraud is alleged, the fraud must be asserted not later than six (6) years after the
order is entered.
IND. CODE § 31-15-7-9.1 (2004).
101. Robinson, 858 N.E.2d at 204.
102. Id. at 205-06.
103. Id. at 205.
104. Id.
105. Id. at 205-06.
106. Id. at 205.
107. Id. at 205-06 (discussing Self v. Self, 907 So. 2d 546, 547-48 (Fla. Dist. Ct. App. 2005);
In re Marriage of Allen, 798 N.E.2d 135, 137-38 (Ill. App. Ct. 2003); Weller v. Weller, 684 N.E.2d
1284, 1286-88 (Ohio Ct. App. 1996)).
108. Id. at 205 n.10, 208 (discussing Niccum v. Niccum, 734 N.E.2d 637, 637-39 (Ind. Ct.
App. 2000). While a trial court retains jurisdiction to interpret and enforce its own decree, Thomas
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Thus, the trial court abused its discretion by ordering modification of the QDRO
which, in effect, resulted in an improper modification of the parties’ settlement
agreement.109
C. Enforcement of Dissolution Orders
1. Interest on Orders.—In Zoller110 the trial court enforced its decree for the
payment of a sum of money to the wife and added substantial interest from the
date of the entry of the decree.111 On appeal, the husband complained that when
the trial court entered its decree giving the husband the parties’ marital residence
in 2002 and ordering him to pay the wife more than $62,000 to equalize the
distribution, the decree said nothing about interest.112 Therefore, he argued he
should not be ordered to pay interest due to his failure to pay the court order in
the decree.113 The order in the decree requiring the husband to pay the wife was
not called a judgment.114
On appeal, the court noted that “[t]he issue of whether an amount ordered to
be paid as part of the trial court’s property division in a dissolution action bears
interest has been the subject of some dissension.”115 In a succinctly reasoned
analysis, the court noted that Trial Rule 54 of the Indiana Rules of Trial
Procedure defining “a ‘judgment’ includes a decree [of dissolution of marriage]
and any order from which an appeal lies”; that a decree “becomes final and
appealable when entered by the trial court”; that an order to pay a sum of money
in a dissolution property order is a money judgment; and that “money judgments,
including sums ordered to be paid in the dissolution decree, accrue interest” even
if not expressly provided for in the dissolution decree.116
2. Enforcement of Distribution Order by Contempt.—In Mitchell v.
Mitchell,117 the Indiana Court of Appeals essentially extended the proposition in
prior authority that the court’s contempt power may be used to compel
compliance with a decree’s hold harmless clause. Mitchell involved a divorce
settlement in which the husband agreed to hold the wife harmless from
obligations that he was assuming or had assumed.118 He failed to do so, and the
v. Thomas, 557 N.E.2d 216, 219 (Ind. 1991), the standard for the trial court and upon review is that,
“‘[u]nless the terms of a contract are ambiguous, they will be given their plain and ordinary
meaning.’” Robinson, 858 N.E.2d at 205-06 n.2 (quoting Niccum, 734 N.E.2d at 639).
109. Robinson, 858 N.E.2d at 208.
110. 858 N.E.2d 124 (Ind. Ct. App. 2006).
111. Id. at 126.
112. Id.
113. Id.
114. Id.
115. Id.
116. Id. (citing IND. CODE § 31-15-2-16(b) (2004); Williamson v. Rutana, 736 N.E.2d 1247
(Ind. Ct. App. 2000); Van Ripper v. Keim, 437 N.E.2d 130 (Ind. Ct. App. 1982)).
117. 871 N.E.2d 390, 396 (Ind. Ct. App. 2007).
118. Id. at 391.
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wife brought numerous contempt actions against him resulting in findings that
he was in contempt and orders to purge the contempt or face incarceration.119 At
one point during these numerous contempt proceedings the husband actually was
incarcerated.120
Eventually, the trial court began to entertain considerable doubts about its
ability to continue tossing the husband in jail for failure to hold the wife
harmless.121 The trial court appointed the husband an attorney due to the wife’s
continued request that he be incarcerated.122 Based upon the decision in Merritt
v. Merritt,123 the trial court held that contempt was not available to enforce a hold
harmless clause.124
The court simply skirts the prescription of Indiana Constitution article I,
section 22 prohibiting imprisonment for debt125 by saying that a hold harmless
clause is not an order to pay a fixed sum in installments or a lump sum.126
Additionally, where a hold harmless clause requires the offending party to make
installments to a third party, how can imprisonment for contempt for failure to
fulfill the hold harmless clause be any different than failure to pay any other
debt—by lump sum or installment?127 This is certainly a triumph of form over
substance inasmuch as the amount owed to a creditor can be ascertained and
reduced to a judgment in favor of one spouse and against the other. Additionally,
where a hold harmless clause requires the offending party to make installment
payments to a third party, how can imprisonment for contempt for failure to
fulfill the hold harmless clause be any different than imprisonment for failure to
pay any other debt?128
119. Id.
120. Id. at 391-93.
121. Id. at 393.
122. Id.
123. 693 N.E.2d 1320, 1324 (Ind. Ct. App. 1998).
124. Mitchell, 871 N.E.2d at 394-96. Speaking of Merritt, the court decided its holding was
dicta and decided not to follow it, stating that:
[In Merritt], [w]e affirmed and held that the hold harmless provision constituted an
award of property, not a support obligation, and that therefore it was dischargeable in
bankruptcy. As the debt was discharged in bankruptcy, the obligation could not be
enforced. But, we went on to say in dicta, “[B]ecause [a] hold harmless provision
constitute[s] a property settlement award, it may not be enforced through contempt
proceedings. Property settlement agreements incorporated into a final decree of
dissolution may not be enforced by contempt citation.” We find this dicta to be too
broad.
Id. at 394-95 (citing and quoting Merrit, 693 N.E.2d at 1324) (footnote omitted).
125. IND. CONST. art. I, § 22.
126. Mitchell, 871 N.E.2d at 394-96.
127. Id.
128. See Cowart v. White, 711 N.E.2d 523, 531 (Ind. 1999) (finding that contempt is
unavailable to enforce a hold harmless clause which requires installment payments to a third party).
It should be noted, however, that Cowart upheld contempt findings by the trial court due to the
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D. Spousal Maintenance
1. Proof of Disability.—In Matzat v. Matzat,129 the Indiana Court of Appeals
reversed that portion of the trial court’s dissolution decree awarding post-decree
incapacity maintenance to the wife, holding she failed to provide sufficient
medical evidence of her disability. In Matzat, the husband appealed the trial
court’s award of incapacity maintenance to the wife and its exclusion of evidence
that the Social Security Administration denied her disability claim at the hearing
on his motion to correct errors.130
In Matzat, the wife’s only evidence of her incapacity was “that she could no
longer work as a certified nurse because she was unable to lift patients,” that she
could not sit sufficiently long enough to do other work, and that she had applied
for social security disability benefits.131 The trial court awarded her incapacity
maintenance of $200 per week and required the husband to continue her health
insurance coverage until she began receiving the benefits.132 The husband filed
a motion to correct errors contending that the award of maintenance was an abuse
of discretion.133 At the hearing on the motion to correct errors, the husband
attempted to introduce evidence that the Social Security Administration had
denied the wife’s claim for disability.134 Concerning the exclusion of the
evidence at the hearing on the motion to correct errors, the court found that the
evidence was improperly excluded because it fit the criteria for newly discovered
evidence, it had not been issued until after the final hearing, and it was relevant
to show the wife’s claim for disability benefits was based, in part, on reasons
other than those cited at trial.135 Noting that it has long-been held that medical
testimony is not required to support an award of incapacity maintenance where
the spouse testified that she was receiving Social Security Disability benefits due
to a medical condition,136 the court stated:
While our research has not yielded a single, reported case in which this
court has reversed the trial court’s grant or denial of an incapacity
maintenance award on the basis of evidentiary sufficiency, it has also not
produced a case where the evidence supporting an award was as meager
as the one here.137
husband’s failure to maintain certain real estate, sell it, and divide the proceeds with the former
spouse. Id.
129. 854 N.E.2d 918, 922 (Ind. Ct. App. 2006).
130. Id. at 919.
131. Id.
132. Id.
133. Id.
134. Id.
135. Id. at 919-20.
136. Id. at 920-21 (citing Paxton v. Paxton, 420 N.E.2d 1346, 1348 (Ind. Ct. App. 1981)).
137. Id.
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Under these circumstances, the court’s decision is important for the examples it
provides for what the allegedly incapacitated spouse must prove regarding her
impairments and their impact on the ability to support:
[The wife] had the burden of proof on this issue; from her testimony
we know that she claimed back problems, including back pain, that she
had sought medical treatment, that she takes medication for the pain, and
that she claimed to have left her job as a certified nurse because she
could not lift patients. She also claimed that she had trouble standing,
sitting, or walking for extended periods of time.
[The wife] presented no medical evidence to support her claim of
incapacity. We have no reports from treating or examining physicians.
We have no expert opinion testimony. We have no x-rays or magnetic
resonance imaging tests. We do not know the nature of her back
problems or the cause. We do not know either the diagnosis or the
prognosis. We also do not know the recommended treatment and
whether she has followed that treatment. We do not know the limits, if
any, that doctors may have placed on her. We do not know whether the
problems are quiescent. We do not know whether they are temporary or
permanent.138
Accordingly, the trial court’s award of incapacity maintenance was reversed
because wife’s evidence of her impairments was insufficient to show the extent
to which they limited her ability to support herself.139
II. CHILD CUSTODY
A. Jurisdiction
On August 15, 2007, Indiana’s version of the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”)140 became effective.141 UCCJEA
is a uniform state law approved by the National Conference of Commissioners
on Uniform State Laws (“NCCUSL”) to replace the Uniform Child Custody
Jurisdiction Act (“UCCJA”).142
The UCCJEA governs State courts’ jurisdiction to make and modify
“child custody determinations,” a term that expressly includes custody
and visitation orders.
138. Id. at 921.
139. Id.
140. IND. CODE § 31-21-1-1 (Supp. 2007).
141. Novatny v. Novatny, 872 N.E.2d 673, 678 n.5 (Ind. Ct. App. 2007).
142. Patricia M. Hoff, The Uniform Child-Custody Jurisdiction and Enforcement Act, JUV.
JUST. BULL., Dec. 2001, at 1, available at http://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf
(footnotes omitted).
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The Act requires State courts to enforce valid child custody and
visitation determinations made by sister State courts. It also establishes
innovative interstate enforcement procedures.
The UCCJEA is intended as an improvement over the UCCJA. It
clarifies UCCJA provisions that have received conflicting interpretations
in courts across the country, codifies practices that have effectively
reduced interstate conflict, conforms jurisdictional standards to those of
the Federal Parental Kidnapping Prevention Act (the PKPA) to ensure
interstate enforceability of orders, and adds protections for victims of
domestic violence who move out of State for safe haven.
The UCCJEA, however, is not a substantive custody statute. It does
not dictate standards for making or modifying child-custody and
visitation decisions; instead, it determines which States’ courts have and
should exercise jurisdiction to do so. A court must have jurisdiction
(i.e., the power and authority to hear and decide a matter) before it can
proceed to consider the merits of a case. The UCCJEA does not apply
to child support cases.143
143. Id. IND. CODE § 31-21-1-1 (Supp. 2007) provides: “This article does not apply to: (1) an
adoption proceeding; or (2) a proceeding pertaining to the authorization of emergency medical care
for a child.” IND. CODE § 31-21-2-4 (Supp. 2007) provides:
(a) “Child custody determination” means a judgment, decree, or other court order
providing for:
(1) legal custody;
(2) physical custody; or
(3) visitation;
with respect to a child.
(b) The term does not include an order relating to child support or other monetary
obligation of a person.
IND. CODE § 31-21-2-5 (Supp. 2007) provides:
(a) “Child custody proceeding” means a proceeding in which legal custody, physical
custody, or visitation with respect to a child is an issue. The term includes a proceeding
for:
(1) dissolution of marriage or legal separation;
(2) child abuse or neglect;
(3) guardianship;
(4) paternity;
(5) termination of parental rights; and
(6) protection from domestic violence;
in which the issue of child custody or visiation may appear.
(b) the term does not include a proceeding involving juvenile delinquency, contractual
emancipation, or enforcement of child custody under [Indiana Code section] 3121-6.
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Indiana Code section 31-21-7-3 provides that any relevant action governed by the
statute that was commenced before July 1, 2007, is governed by the law in effect
at the time.144
Several cases involving the UCCJA as it existed prior to July 1, 2007, were
decided during the survey period. Cox v. Cantrell145 involved the transferring of
the jurisdiction of a custody proceeding from Indiana to Michigan where father’s
three children were receiving therapy while in residential placement. The
mother, who had custody of the parties’ three children, had moved from Indiana
to Michigan.146 On June 8, 2006, the Michigan Department of Human Services
filed a petition alleging the children had been abused and neglected, and they
were removed from the mother’s care and put in residential placement.147 On
June 15, 2006, the father and mother filed a joint stipulation for change of
custody and support with the Elkhart Superior Court.148 They stipulated that it
was in the best interests of the children for custody to be changed from the
mother to the father.149 On the same day, without a hearing, the Elkhart Superior
Court approved the parties’ stipulation, concluding that it had continuing and
prior jurisdiction over the children.150 The trial court further ordered the children
to be returned to the State of Indiana to the father’s custody as soon as
possible.151 Thereafter, the judge of the Michigan court and the judge of the
Indiana court held a telephone conference in which it was decided that the best
interests of the children required that they remain in residential care (where they
were receiving medical and psychological care) and that the jurisdiction was to
be in the State of Michigan.152 The Indiana trial court ordered the jurisdiction
changed to Michigan.153
The father appealed contending, in sum, that the trial court lacked statutory
authority to issue the order transferring jurisdiction of the proceedings to the
Michigan court, that the father’s due process rights had been violated by the two
courts holding a telephone conference, and that the Indiana order violated
Michigan law.154 In affirming the trial court, the Indiana Court of Appeals
144. IND. CODE § 31-21-7-3 (Supp. 2007) provides: “A motion or other request for relief
made: (1) in a child custody proceeding; or (2) to enforce a child custody determination; that was
commenced before July 1, 2007, is governed by the law in effect at the time the motion or other
request was made.” But see Novatny v. Novatny, 872 N.E.2d 673, 678 n.5 (Ind. Ct. App. 2007)
(stating effective date of August 15, 2007).
145. 866 N.E.2d 798, 802 (Ind. Ct. App. 2007).
146. Id.
147. Id.
148. Id.
149. Id.
150. Id.
151. Id.
152. Id. at 803.
153. Id.
154. Id. at 804-05, 808-10.
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concluded that federal law required the trial court in Indiana to give full faith and
credit to the Michigan court’s custody determination because the Michigan
court’s exercise of jurisdiction to remove the children from the mother’s custody
was controlled by the emergency provision of the PKPA.155 The court reasoned
that the facts of the case indicated that the proceeding in Michigan was the
equivalent of an Indiana Child in Need of Services Proceeding because the
children had to be removed from their mother for their own physical and
emotional welfare.156 The court stated:
When such a tragic emergency occurs, the state where the children are
located should and does have authority under federal law to immediately
take action to protect the children located within its borders. Public
policy supports such law when the state where the child is physically
located has the best knowledge of the circumstances as well as the
resources to take immediate action to ensure the child’s protection.
Therefore, Michigan was exercising its jurisdiction as provided under
federal law, and Indiana was required to give full faith and credit to
Michigan’s temporary custody determination to put the children in
residential placement for treatment.157
The father also contended that the trial court violated his due process rights
in holding a telephone conference with the Michigan court judge to determine the
appropriate state jurisdiction.158 The court disagreed quoting Indiana Code
section 31-17-3-6(c) which provides that:
“If the court is informed during the course of the proceeding that a
proceeding concerning the custody of the child was pending in another
state before the court assumed jurisdiction it shall stay the proceeding
and communicate with the court in which the other proceeding is
pending to the end that the issue may be litigated in the more appropriate
forum and that information be exchanged in accordance with sections 19
through 22 of this chapter.”159
The Indiana Court of Appeals stated that not only is a trial court authorized
to communicate with another state court to determine the appropriate jurisdiction,
but it is required to do so upon learning that a proceeding concerning the custody
of a child under its jurisdiction is pending in another state.160 The father had
argued that Indiana Code section 31-17-3-4 required that, before the court could
make a decree, reasonable notice and opportunity had to be given to all the
parties including the parents.161 The court held that the trial court’s order
155.
156.
157.
158.
159.
160.
161.
Id. at 807.
Id. at 808.
Id
Id.
Id. (quoting IND. CODE § 31-17-3-6(c) (1998)).
Id. at 809.
Id.
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transferring jurisdiction to the Michigan court was neither a decree nor a custody
determination but was merely an order concluding that Michigan was the more
appropriate forum to handle the custody proceeding.162
In Novatny v. Novatny163 the mother and father were divorced in Indiana.
The mother was given custody of the children and subsequently petitioned the
court to relocate the children to Virginia.164 After a hearing, this petition was
granted, and the mother moved the children to Virginia.165 Prior to the hearing
on relocation, the father had moved from the State of Indiana to the State of
Illinois.166 Approximately two-and-one-half years after the trial court had granted
the mother’s petition to relocate the children to Virginia, the father filed a
petition to modify custody of the children.167
The mother filed an objection under the UCCJA contending that Indiana no
longer had jurisdication over this case because neither of the parties resided in
Indiana any longer and Virginia was the home state of the children.168 The father
countered by pointing out that no action had been initiated in Virginia and,
therefore, no Virginia court had assumed jurisdiction, so it was appropriate for
Indiana to retain jurisdiction.169 The trial court agreed.170 After a hearing the
trial court granted the father’s petition to modify.171 The mother appealed.172
The court of appeals vacated the trial court’s order and held that the trial
court lacked jurisdiction under the UCCJA to hear the father’s petition.173 The
court noted that the state that first enters a custody decree in a matter retains
exclusive jurisdication under the UCCJA, but that jurisdiction continues only
until all the parties and the children have left the state.174 Once all the parties and
the children have left the state and the children acquire a “home state”175 other
than Indiana, then jurisdiction may not be assumed in Indiana unless the home
162. Id.
163. 872 N.E.2d 673, 675-76 (Ind. Ct. App. 2007).
164. Id. at 676.
165. Id. at 676-77.
166. Id. at 676.
167. Id. At the time of the filing of the father’s petition he continued to live in Illinois, the
mother had moved the children to Virginia in February 2004, and that was where they were living
at the time the petition was filed. Id.
168. Id.
169. Id.
170. Id.
171. Id.
172. Id.
173. Id. at 682.
174. Id at 679 (citing In re Custody of A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003)).
175. Indiana Code section 31-17-3-2(5) (2004) (repealed 2007) defines “home state” as
the state in which the child, immediately preceding the time involved, lived with his
parents, a parent, or a person acting as parent, for at least six (6) consecutive months .
. . . Periods of temporary absence of any of the named persons are counted as part of the
six (6) months or other period.
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state has declined its jurisdiction.176 The court further stated that, even though
Virginia had not assumed jurisdiction of the case, no evidence in the record
indicated that Virginia had declined jurisdiction either.177 The court noted that
under the UCCJA, Virginia qualified as the children’s home state.178
After the father had been granted custody of the children by the trial court
and before the appeal was decided, he moved back to Indiana with the children.179
He argued that through the passage of time, by operation of law, Indiana would
now be the children’s home state.180 The court dismissed that argument by
pointing out that the trial court did not have jurisdiction over the father’s petition
when he had filed it.181 “‘When a court lacks subject matter jurisdiction, its
actions are void ab initio and may be challenged at any time.’”182
B. Factors Affecting Modification of Custody
1. Consistent Denial of Visitation and Failure to Foster Parent/Child
Relationship.—In re Marriage of Kenda183 involved a case where the mother and
father were both citizens of a foreign country.184 The parties were divorced in the
District of Columbia Superior Court.185 The mother eventually relocated to
Indiana where she filed a petition to modify non-custodial parenting time.186 The
father countered by filing a petition for modification of custody, parenting time,
child support, and request for custody evaluation.187 The custody evaluation was
performed with the conclusion that the mother retain physical custody of the
parties’ minor child.188 Prior to the hearing on the matter, the father filed a
motion for contempt citation alleging that the mother had refused to allow any
parenting time, unless it was supervised, since prior to the filing of her petition
to modify, which was not a requirement under the divorce decree.189 Indeed, the
record was replete with evidence of the mother’s interference with the father’s
176. Novatny, 872 N.E.2d at 680 (citing Hughes v. Hughes, 665 N.E.2d 929, 932 (Ind. Ct.
App. 1996).
177. Id. “Apparently, Virginia had never been requested to assume jurisdiction prior to the
filing of [f]ather’s petition.” Id.
178. Id.
179. Id. at 681.
180. Id.
181. Id.
182. Id. (quoting Allen v. Proksch, 832 N.E.2d 1080, 1095 (Ind. Ct. App. 2005)).
183. 873 N.E.2d 729, 731 (Ind. Ct. App.), trans. denied, Kenda v. Pleskovic, 878 N.E.2d 222
(Ind. 2007).
184. Id.
185. Id.
186. Id. at 731-32.
187. Id. at 732.
188. Id.
189. Id.
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parenting time.190 After trial, the court denied the mother’s request for
supervised parenting time and granted the father’s petition for modification of
custody.191 The mother appealed.192
On appeal, the mother argued that the trial court’s modification decision was
based on her perceived violations of the trial court’s prior orders regarding
visitation rather than the statutory factors.193 In Indiana, a trial court cannot
modify custody unless it first determines that a substantial change in
circumstances has occurred and that a modification is in the best interest of the
child.194 The burden of demonstrating that the existing custody order is
unreasonable is upon the party seeking the modification, and the court needs to
keep in mind that stability and permanence are considered best for the child.195
In this case the court of appeals found that the relationship between the father
and the child had been substantially changed due to the mother’s efforts to
prevent such a relationship by interfering with the father’s visitation rights as
provided by court order.196 The court further noted that it was in the child’s best
interest to “have a well-founded relationship with each parent” and that prior
decisions have held that when a custodial parent denies visitation rights to the
other parent without evidence that the non-custodial parent is a threat to the
190. Id. at 738.
191. Id. at 735.
192. Id.
193. Id. at 737. Pursuant to Indiana Code section 31-17-2-21, the court may not modify a
child custody order unless modification is in the child’s best interest and there is a substantial
change in one of the factors found at Indiana Code section 31-17-2-8 which are as follows:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the
child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the
evidence is sufficient, the court shall consider the factors described in section
8.5(b) of this chapter.
IND. CODE § 31-17-2-8 (2004).
194. In re Marriage of Kenda, 873 N.E.2d at 737.
195. Id.
196. Id. at 739.
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child, such may be a proper grounds to modify custody.197 Based on the
significant evidence of the mother’s denial and interference with the father’s
rights, the trial court did not abuse its discretion in modifying custody.198
2. Gender and Wishes of the Child.—In custody determination matters in
Indiana, the appellate courts “accord latitude and great deference to a trial court’s
custody determination.”199 This is because the trial court often considers
sensitive and subtle factors, has the ability to speak with and observe the parties
and the principals, and thus is in a far better place to perform the necessary
personal and interpersonal evaluations to weigh the competing considerations.200
This latitude and deference was accorded to the trial court in the case of Sabo v.
Sabo.201
In Sabo, when the mother and father divorced they had reached an agreement
of settlement which provided that the child would live with one parent during the
school year and with the other parent during the summer vacation.202 The mother
was in the military and had relocated several times while the father remained in
Indiana.203 Up to and including her eleventh birthday the child had lived with the
father during the school year and with the mother during the summer vacations.204
During the school year the child developed a close relationship not only with the
father, but also with the father’s family and some newly acquired friends.205
During the summer vacation the child was exposed to different and sometimes
exotic locales while with the mother in which she benefited culturally,
educationally, and emotionally.206 As she approached puberty and her twelfth
birthday, the child made a request that she be allowed to live with the mother
during the school year and with the father during the summer vacations.207
Primarily, the child felt more comfortable discussing the issues of puberty and
adolescence with her mother.208 The mother requested a change in the custody
arrangement to accommodate the daughter’s wishes.209 A custody evaluation was
performed which determined that both parents were responsible, conscientious,
and loving parents.210 The custody evaluator stated that the child had expressed
a desire to be with the mother during the school year for the previously stated
197. Id. (citing Johnson v. Natton, 615 N.E.2d 141, 146 (Ind. Ct. App. 1986); Bays v. Bays,
489 N.E.2d 555, 561 (Ind. Ct. App. 1986)).
198. Id. at 740.
199. Sabo v. Sabo, 858 N.E.2d 1064, 1071 (Ind. Ct. App. 2006).
200. Id.
201. Id.
202. Id. at 1066.
203. Id.
204. Id.
205. Id. at 1067.
206. Id. at 1069.
207. Id. at 1067 n.1.
208. Id. at 1069.
209. Id. at 1067.
210. Id.
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reasons.211 The court conducted an in camera interview in which the child stated
the same reasons.212 Testimony of both the parents was taken.213 At the
conclusion of the hearing, the trial court awarded school-year custody to the
mother and summer vacation custody to the father.214 The father appealed.215
On appeal, the father argued essentially that the trial court committed error
by considering the wishes of the child because she was only eleven years of age
and not fourteen as specified in Indiana Code section 31-14-13-2(3).216 In
affirming the trial court, the court of appeals noted that the court’s decision was
driven solely by a consideration of the best interests of the child and that it was
neither a custody modification nor an initial custody determination.217
Regardless, however, the court noted that when custody rights of the parents are
determined, the best interests of the child are the primary consideration.218
Here, the fact that the child wanted to spend a specified period of time with
the same gender parent because of puberty issues was a factor that the trial court
could consider.219 With respect to the issue of whether the child had to be at least
fourteen years of age before the court could consider her wishes, the court of
appeals noted that Indiana Code section 31-14-13-2(3) did not prevent the court
from considering the wishes of a child under fourteen years of age—merely that
a child’s wishes are to be given more weight in the court’s balancing of factors
if the child was at least fourteen years of age.220 Thus, considering the child’s
desire to live with the mother was appropriate as long as the trial court’s decision
had not considered only the child’s wishes on the subject.221 Here, the trial court
considered all the factors and circumstances bearing upon the child’s best interest
and did not commit an abuse of discretion.222
3. Failure of Children to Progress Academically.—In the case of Webb v.
Webb,223 the mother and father had been awarded joint legal custody with
primary physical custody of the children being given to the mother. The father
211. Id. at 1066-67.
212. Id. at 1068 n.1.
213. Id. at 1067.
214. Id. at 1067-68.
215. Id. at 1068.
216. Id. at 1070 (citing IND. CODE § 31-14-13-2(3) (2004)).
217. Id. at 1068-69. “The difference is generally important. In an initial custody
determination, both parents are presumed equally entitled to custody, but a petitioner seeking
subsequent modification bears the burden of demonstrating that the existing custody should be
altered.” Id. at 1068 (citing Hughes v. Roqusta, 830 N.E.2d 898, 900 (Ind. Ct. App. 2005)).
218. Id. Indiana Code section 31-14-13-2(3) is the initial custody statute. IND. CODE § 31-1413-2(3) (2004). The court noted that the terms of the agreement of settlement were not being
changed. Sabo, 858 N.E.2d at 1068.
219. Id. at 1068-69.
220. Sabo, 858 N.E.2d at 1068.
221. Id. at 1070.
222. Id. at 1070-71.
223. 868 N.E.2d 589, 591 (Ind. Ct. App. 2007).
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filed a petition to modify that custody provision, and the trial court awarded sole
legal and physical custody to the father.224 The mother appealed, contending that
the evidence was insufficient to prove that the custody modification would be in
the children’s best interests and that the evidence did not establish that a
substantial change in circumstances had occurred.225 At trial, evidence was
introduced that demonstrated significant failure of the children to progress
academically while in the mother’s care.226 The evidence further demonstrated
that one of the problems preventing the children’s educational progress was the
failure of the mother to ensure that their homework was completed or turned in
while the children were in her care.227 Evidence also showed that the father was
very proactive in attempting to address the children’s problems through the
school.228 Evidence further showed resistance from the mother regarding the
father’s efforts.229
In affirming the trial court, the court of appeals again reiterated the factors
and burden established by Indiana Code section 31-17-2-8.230 In analyzing the
evidence in the record in light of the statute, the court agreed with the trial court
that the failure of the children to progress academically constituted a substantial
change in circumstances that warranted modification of the custody provision
and that it would be in the best interests of the children to grant sole legal and
physical custody to the father.231
C. Modification of Joint Legal Custody to Sole Legal Custody
In Indiana, an appellate court will affirm an award of joint legal custody
where the parents demonstrate a willingness and ability to communicate and
cooperate in advancing the welfare of the children.232 In the case of Tompa v.
Tompa233 the court of appeals affirmed a trial court’s decision to modify the joint
legal custody of the parties’ two minor children to sole legal custody in the
father. The record demonstrated that the parties had quite a contentious postdissolution relationship.234 The mother and father’s relationship was particularly
marked by the mother’s frequent accusations that the father was a sexual abuser
of children despite the conclusion of a panel of psychologists that they were
unable to determine to a reasonable degree of certainty whether the children had
224.
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
Id.
Id. at 592.
Id. at 593.
Id.
Id. at 593-94.
Id. at 593.
Id. at 592-93.
Id. at 594.
Walker v. Walker, 539 N.E.2d 509, 513 (Ind. Ct. App. 1989).
867 N.E.2d 158, 164 (Ind. Ct. App. 2007).
Id. at 161-62.
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been abused by anyone.235 The trial court had also found that the mother’s
allegations of sexual misconduct by the father were unsubstantiated.236
The mother appealed the trial court’s order contending it had abused its
discretion and that the evidence reflected in the trial court’s findings and
conclusions did not support a change in the custody arrangement.237 The mother
pointed out that no fundamental difference “in child rearing philosophies,
religious beliefs, or lifestyles” existed between the parents.238 The court of
appeals, however, noted that the record revealed that child rearing between the
parties had become a battleground.239 The court stated: “The record is saturated
with evidence documenting the tensions, lack of communication, and lack of
cooperation associated with the [parties’] joint legal custody arrangement.”240
As an example, the record was “replete with references of the parties’ inability
to communicate concerning the children’s extracurricular activities, schooling,
vacations, and missed visitation opportunities.”241 Therefore, the trial court
properly used its discretion in modifying the joint legal custody arrangement to
sole legal custody in favor of the father.242
As a cautionary note regarding joint legal custody, the court of appeals
further stated that “[i]n this light, we whole heartedly agree with the following
words stated in the dissenting opinion in Lamb v. Wenning: ‘The pitfall of
awarding and maintaining a joint custody arrangement primarily to placate the
[parents] should be avoided as not in the best interests of the child.’”243
D. Custody and Third Parties
Before a trial court can place a child in the custody of a person other than the
natural parents, it must be satisfied by clear and convincing evidence that the best
interests of the child require a placement with the third person.244 In the case of
Truelove v. Truelove245 the trial court awarded custody of the mother’s children
to their paternal grandparents. The mother appealed contending, among other
things, that “the trial court was specifically required to find that the Grandparents
were de facto custodians of the Children, Mother was unfit, or Mother had long
acquiesced to the Grandparents’ custody of the Children.”246 Because the
235. Id. at 164.
236. Id.
237. Id. at 163.
238. Id.
239. Id.
240. Id. at 163-64.
241. Id. at 164.
242. Id.
243. Id. (alteration in original) (quoting Lamb v. Wenning, 583 N.E.2d 745, 753 (Ind. Ct. App.
1991), rev’d on different grounds, 600 N.E.2d 96 (Ind. 1992)).
244. In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002).
245. 855 N.E.2d 311, 313 (Ind. Ct. App. 2006).
246. Id. at 314.
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evidence did not support any of these findings, she contended that the trial
court’s order lacked sufficient evidence to support a finding that placement with
the grandparents was in the children’s best interests.247
In addressing these arguments of the mother, the court of appeals noted the
following:
The presumption in favor of the natural parent will not be overcome
merely because a third party could provide better things for the child. In
a proceeding to determine whether to place a child with a person other
than the natural parent, evidence establishing the natural parent’s
unfitness or acquiescence, or demonstrating that a strong emotional bond
has formed between the child and the third person, would be important,
but the trial court is not limited to these criteria. The issue is not merely
the “fault” of the natural parent, but rather it is whether the important
and strong presumption that a child’s interests are best served by
placement with the natural parent is clearly and convincingly overcome
by evidence proving that the child’s best interests are substantially and
significantly served by placement with another person.
This
determination falls within the sound discretion of our trial courts, and
their judgments must be afforded deferential review.248
Taking the above into consideration, the court of appeals noted that the trial
court was not required to make specific findings of the mother’s unfitness or her
acquiescence to the children’s living arrangements.249 Instead, the trial court
carefully reviewed the substantial evidence that existed showing that the parents’
circumstances were such that “[they] can barely take care of themselves, let alone
two children in addition to themselves.”250 Based upon the evidence from the
record, the court of appeals agreed that clear and convincing evidence established
that the children’s best interests were substantially served by placement with the
grandparents.251
The issue of whether the trial court must specifically find unfitness,
abandonment, or acquiescence on the part of the child’s parents was raised in the
subsequent case of Blasius v. Wilhoff.252 In this case, the Wilhoffs filed a petition
to adopt a child.253 Blaisus, the putative father, however, contested the adoption
after having been established as the child’s biological father.254 Subsequently,
the putative father was adjudicated to be the child’s biological father, and the
247. Id.
248. Id. (citing B.H., 770 N.E.2d at 287).
249. Id.
250. Id. at 315. The appellate court noted that the trial court appropriately refrained from
labeling the mother an “unfit” parent. Id.
251. Id.
252. 863 N.E.2d 1223, 1229 (Ind. Ct. App. 2007).
253. Id. at 1226.
254. Id.
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adoption petition was denied.255 However, the trial court awarded custody of the
child to the prospective adoptive parents as third party custodians.256 The father
appealed.257
The father’s argument on appeal was substantially the same as in Truelove.258
He argued that the trial court abused its discretion in awarding the third party
custody of the child because it did not conclude and could not find “that he is
unfit, that he abandoned [the child] [] or acquiesced in the [third party’s]
custody.”259 Relying upon the court’s determination in Truelove, the court
“reiterat[ed] that evidence establishing the biological parent’s unfitness or
acquiescence, or demonstrating that a strong emotional bond has formed between
the child and the third person, would be important, but the trial court is not
limited to these criteria.”260 Thus, the trial court did not abuse its discretion
“despite not finding unfitness, abandonment, or acquiescence.”261
The father further argued, relying on In re Guardianship of L.L.,262 that the
trial court failed “to make a specific finding that separation from the [third party
custodians] will cause [the child] long-term trauma.”263 However, the court noted
that the father’s reliance on this case was misplaced:
[E]vidence sufficient to rebut the presumption may, but need not
necessarily, consist of the parent’s present unfitness, or past
abandonment of the child such that the affections of the child and third
party have become so interwoven that to severe them would seriously
mar and endanger the future happiness of the child.264
Furthermore, the court noted that “[s]uch an upheaval, where it can only be said
to have potential short-term effects, is insufficient to deny natural parent custody
of his or her child.”265
The court of appeals noted that the child’s therapist testified that the
separation would be very traumatizing to the child and “did not qualify his
opinion by stating the effects would be merely short-term.”266 An independent
evaluation believed that the traumatic effect on the child would be much less
severe than the child’s therapist believed.267 However, because “the trial court
clearly assigned greater weight to [the therapist’s] prognostication,” the court
255.
256.
257.
258.
259.
260.
261.
262.
263.
264.
265.
266.
267.
Id.
Id. at 1226-27.
Id. at 1229.
Id. (citing Truelove v. Truelove, 855 N.E.2d 311 (Ind. Ct. App. 2006)).
Id. at 1230.
Id. (citing Truelove, 855 N.E.2d 311).
Id.
745 N.E.2d 222 (Ind. Ct. App. 2001).
Blasius, 863 N.E.2d at 1230.
Id. at 1231 (citing L.L., 745 N.E.2d at 230-31).
Id. (citing L.L., 745 N.E.2d at 233).
Id.
Id.
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would not reweigh the respective testimonies of the experts.268
In sum, the court of appeals found that the trial court was clearly convinced
that placement with the third parties “represent[ed] a substantial and significant
advantage to the child,” and therefore the court’s findings were not “clearly
erroneous or . . . against the logic and effect of the evidence.”269
E. Parenting Time/Visitation Issues
1. Admissibility of Hearsay Statements.—In custody or visitation
modifications involving small children, admissibility of statements purportedly
made by those children is often at issue. Such was the dilemma confronted by
the court in the case of In re Paternity of H.R.M.270 In this case, the father was
allowed reasonable visitation, which was to be agreed upon by the parties.271
Conflict and disagreement between the parties regarding the father’s visitation
with the minor child, ensued with the mother petitioning the court to modify
visitation.272 The basis for this motion was the mother’s assertion that the father
had sexually abused the parties’ child.273 Over the father’s objection the trial
court allowed into evidence statements purportedly made by the child to one
social worker and documents made by a second social worker.274 After the
hearing, the trial court issued an order granting the mother’s motion and ordered
the father’s visitation to be supervised.275 The father appealed arguing that the
admission of the child’s purported statements constituted inadmissible hearsay
that affected his substantial rights.276
In determining the issue of whether the statements made to the social worker
constituted inadmissible hearsay, the court of appeals examined Indiana Evidence
Rule 803(4).277 Rule 803(4) provides that hearsay evidence may be admitted if
it consists of statements made for the purposes of medical treatment.278 As the
court noted, the rationale for this rule is the assumption that people seeking
medical treatment have a strong incentive to tell the truth and that, therefore,
268. Id.
269. Id.
270. 864 N.E.2d 442, 444 (Ind. Ct. App. 2007).
271. Id. at 445.
272. Id.
273. Id.
274. Id.
275. Id.
276. Id. at 446.
277. In pertinent part Rule 803(4) provides that “statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or the general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment” are not excluded by the hearsay rule. IND. R.
EVID. 803(4).
278. Id.
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such statements are reliable.279 Statements made to non-physicians may be
included under the rule so long as the person making the statement does so to
advance a medical diagnosis or treatment.280 In this context, the court pointed out
that it has been held that statements made to family therapists may be admitted
pursuant to Rule 803(4) as long as a proper showing of reliability has been
made.281 Because the social worker specialized in working with abused children,
the court concluded that statements made to her would fall within the scope of
Rule 803(4).282 Having determined that question, the court then looked to see
whether the record revealed evidence that satisfied the two prong test for a proper
showing of reliability.283 The court found that the statements to the social worker
failed the first prong.284 The court observed:
Under this first prong, “the declarant must subjectively believe that he
was making the statement for the purpose of receiving medical diagnosis
or treatment.” Although sometimes this subjective belief may be readily
inferred from the circumstances, “[w]here that inference is not obvious
as in this case involving a young child brought to treatment by someone
else, there must be evidence that the declarant understood the
professional’s role in order to trigger the motivation to provide truthful
information.”285
The court concluded that “the record contains no indication that [the child]
had the requisite motivation to tell the truth, as no evidence indicates that she
knew [the social worker’s] role or that she was being interviewed for the purpose
of medical diagnosis.”286
Also admitted into evidence over the father’s objection were notes made by
another social worker which contained hearsay statements attributed to the
child.287 The court determined that these notes did not comply with the records
of regularly conducted business activity exception to the hearsay rule found
under Indiana Evidence Rule 803(6) because the records were not properly
supported by testimony or an affidavit.288 In this case the records were
279. H.R.M., 864 N.E.2d at 446.
280. Id.
281. Id.
282. Id. (citing McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)). The Indiana Supreme
court noted that in determining whether a statement is admissible pursuant to Rule 803(4) the
“courts engage in a two prong test: ‘1) is the declarant motivated to provide truthful information
in order to promote diagnosis and treatment; and 2) is the content of the statement such that an
expert in the field would reasonably rely on it in rendering diagnosis or treatment.’” Id. (quoting
McClain, 675 N.E.2d at 331).
283. Id.
284. Id. at 447.
285. Id. at 446 (alteration in original) (quoting McClain, 675 N.E.2d at 331).
286. Id. at 447.
287. Id. at 448-50.
288. Id. Under Indiana Evidence Rule 803(6), otherwise inadmissible hearsay may be
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accompanied by an affidavit.289 The father argued that the affidavit
accompanying the business records was insufficient because it did not indicate
that the statements were certified under oath.290 The court agreed.291 The
purported affidavit did not indicate before whom the affiant swore, to what she
swore, that she took an oath, or that these statements were made under the
penalty for perjury.292 The court further noted that “‘[t]he chief test of the
sufficiency of an affidavit is its ability to serve as a predicate for a perjury
prosecution.’”293 The court went on to note that the admission of this evidence
affected the father’s substantial rights and, therefore, did not amount to mere
harmless error.294
2. Grandparent Visitation.—Two cases of interest during the survey period
dealt with grandparent visitation issues.295 Indiana has enacted the Grandparent
Visitation Act which is codified at Indiana Code section 31-17-5-1.296 Under the
Indiana Grandparent Visitation Act, if the court determines that visitation with
the grandparents is in the best interests of the child it may order such visitation.297
Indiana Code section 31-17-5-6 provides that when a trial court issues an order
on a petition for grandparent visitation, it must issue findings and conclusions.298
In the case of McCune v. Frey,299 the court set forth four factors that must be
specifically addressed in those findings of fact and conclusions of law.300 In
Ramsey, the father had denied maternal grandparents visitation with the minor
child of the parties for several reasons.301 Among those reasons was that great
admitted if it consists of records of regularly conducted business activity. IND. R. EVID. 803(6).
Such evidence must be supported by testimony or an affidavit, made under oath, indicating that
such records were kept in the normal course of business and that it was the regular practice of the
business to make such records. Id.
289. Gaddie, 864 N.E.2d at 448.
290. Id.
291. Id.
292. Id. at 449.
293. Id. at 448 (quoting Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind. 1993)).
294. Id. at 451.
295. See Ramsey v. Ramsey, 863 N.E.2d 1232 (Ind. Ct. App. 2007); Shady v. Shady, 858
N.E.2d 128 (Ind. Ct. App. 2006), trans. denied, 869 N.E.2d 451 (Ind. 2007).
296. See Michael G. Ruppert & Joseph W. Ruppert, Recent Developments: Indiana Family
Law, 38 IND. L. REV. 1085, 1096-98 (2005) (discussing the Indiana Grandparent Visitation Act).
297. IND. CODE § 31-17-5-2 to -10 (2004 & Supp. 2007).
298. Id. § 31-17-5-6.
299. 783 N.E.2d 752, 755 (Ind. Ct. App. 2003).
300. The four factors are:
1) the presumption that a fit parent acts in his or her child’s best interests; 2) the special
weight that must be given to a fit parent’s decision to deny or limit visitation; 3) whether
the grandparent has established that visitation is in the child’s best interests; and 4)
whether the parent has denied visitation or has simply limited visitation.
Id. at 575.
301. Ramsey v. Ramsey, 863 N.E.2d 1232, 1240 (Ind. Ct. App. 2007). This animosity
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animosity existed on the part of the maternal grandparents against the father.302
The maternal grandparents had been active participants in allowing the mother
to remove the minor child from the State of Indiana and keeping the child’s
location a secret for a period of time.303 After a hearing, the trial court granted
the maternal grandparents’ petition for visitation and issued findings and
conclusions along with its order.304
The father appealed, contending that the court failed to issue sufficient
findings of fact and conclusions of law along with its order.305 In siding with the
father, the court of appeals found that the trial court’s findings and conclusions
failed to comply with the requirements of McCune by not specifically addressing
the four factors required by McCune.306 The court strongly noted the importance
in a grandparent visitation case for the trial court to not only issue findings of
fact and conclusions with its order as required by Indiana Code section 31-17-56, but also to specifically address the four factors established by McCune.307
3. Factors to Be Considered in Visitation Awards.—One of issues in the
case of Shady v. Shady308 was whether a trial court was required to consider
statutory factors listed in the child custody statute when determining a husband’s
parenting time with his child. In this case, the decree of dissolution awarded the
mother legal and physical custody of the child, and father was granted supervised
parenting time with the child.309 The husband, an Egyptian citizen, had his
parenting time supervised based primarily upon the testimony of an expert in the
field of international parental child abduction310 and the wife’s introduction into
evidence as an exhibit the American Bar Association’s publication, Jurisdiction
In Child Custody and Abduction Cases: A Judge’s Guide to the UCCJA, PKPA
and Hague Child Abduction Convention.311 Basically, this evidence concluded
that the father was a flight risk with the child.312 On appeal, the father argued
that the trial court abused its discretion by failing to consider the statutory factors
found in Indiana Code section 31-17-2-8.313 The father tried to convince the
court that the factors in section 31-17-2-8 are factors the trial court must consider
manifested itself in the maternal grandparents accusing the father of illegal and immoral acts. Id.
302. Id.
303. Id. at 1234.
304. Id. at 1233.
305. Id.
306. Id. at 1238-39.
307. Id.
308. 858 N.E.2d 128, 130 (Ind. Ct. App. 2006), trans. denied, 864 N.E.2d 451 (Ind. 2007).
309. Id.
310. Id. at 132.
311. Id. at 136 (citing Patricia M. Hoff et al., Jurisdiction in Child Custody Cases: A Judge’s
Guide to the UCCJA, PKPA, and the Hague Child Abduction Convention, 48 JUV. & FAM. CT. J.
1 (1997)).
312. Id. at 136-37.
313. Id. at 139 (citing IND. CODE § 31-17-2-8 (2004)); see also supra note 193.
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before entering an order determining custody and visitation.314 The court of
appeals observed that Indiana Code section 31-17-2-8 is clearly entitled “Custody
Order” and that it sets forth the only factors that a trial court must consider in
making a custody determination.315 Additionally, the court noted that Indiana
Code section 31-17-4-1, which
governs a trial court’s decision to award or deny parenting time, does not
require the trial court to consider prescribed factors. Rather, it states, in
relevant part, that “[a] parent not granted custody of the child is entitled
to reasonable parenting time unless the [trial] court finds, after a hearing,
that parenting time by the noncustodial parent might endanger the child’s
physical health or significantly impair the child’s development.”
Whatever the value of a trial court considering the factors listed in
[Indiana Code section] 31-17-2-8, if any, in making the parenting time
determination, it is clear that such is not required, and, therefore, the trial
court did not abuse its discretion by failing to consider those factors.316
Based on this and other issues, the court of appeals affirmed the trial court’s
decision.317
F. Paternity
On July 1, 2006, several additions and changes to the Indiana paternity
affidavit statute became effective.318 Since the adoption of the new statute, a man
who signs a paternity affidavit after the birth of a child is now considered to be
the child’s legal father without requiring further court proceedings.319 He is also
afforded reasonable parenting time with the child unless a court determines
otherwise.320 Once sixty days have elapsed after the execution of a paternity
affidavit, it may only be rescinded in two instances:321 (1) when there is a
showing that there was “fraud, duress, or material mistake of fact bearing upon
the execution of the paternity affidavit” or (2) when the rescission is requested
by the man who signed the affidavit, and only then if that man was excluded as
314. Shady, 858 N.E.2d at 139.
315. Id.
316. Id. at 140.
317. Id. at 143. This case contains a very interesting discussion of the qualification of a
witness as an expert witness in the field of international child abduction and also points out the
dangers of failing to object to evidence at the trial level. See id. at 138-39. The father did not
object to the introduction of the ABA publication. Id. at 138. On appeal the father could have
claimed that the admission of the exhibit was fundamental error which would have excused the
failure to object at trial; however, the father did not do that either. Id. at 138 n.5.
318. IND. CODE § 16-37-2-2.1 (Supp. 2007); see Ruppert & Sedberry, supra note 2, at 925
(discussing these changes).
319. IND. CODE § 16-37-2-2.1(m) (Supp. 2007).
320. Id. § 16-37-2-2.1(g)(2)(B).
321. Id. § 16-37-2-2.1(i).
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the child’s father after biological testing.322 A paternity affidavit may only be set
aside if genetic testing excludes the man who signed the affidavit as the child’s
father.323 A question raised in the case of In re Paternity of Davis,324 was: Does
the existence of a paternity affidavit foreclose any attack upon the presumption
of paternity created thereby except through the procedure set out in Indiana Code
section 16-37-2-2.1?325
In Davis, the county prosecutor’s office filed a petition to establish paternity
in Davis.326 The court ordered genetic testing and the results indicated a
99.9943% chance that Davis was the biological father.327 However, at the time
of the child’s birth, the mother had another man execute a paternity affidavit.328
This paternity affidavit was neither set aside nor was it contested by the man who
had signed the affidavit.329 After the paternity hearing the court found Davis to
be the father, and he appealed.330 On appeal he argued that the existence of the
paternity affidavit foreclosed any attack upon the presumption of paternity
created thereby because the procedure set out in Indiana Code section 16-37-22.1 had not been followed.331 The court of appeals affirmed the trial court,
concluding that the action brought by the county prosecutor was not governed by
the paternity affidavit statute, but instead by Indiana Code sections 31-14-4 and
31-14-6-1.332 The court noted that according to Indiana Code section 31-14-2-1
a man’s paternity may only be established in one of two ways: “(1) in an action
under [Indiana Code section 31-14] or (2) by executing a paternity affidavit in
accordance with [Indiana Code section] 16-37-2-2.1.”333 The court went on to
explain that “[t]he methods available to negate the affidavit vary depending upon
the identity of the party that wishes to rebut paternity.”334 If the man who
executed the affidavit seeks to rebut the affidavit, he must do so under Indiana
Code section 16-37-2-2.1.335 However, an entity, such as a prosecutor’s office,
may file a paternity action under Indiana Code section 31-14-4-1.336 This is what
happened in this case, and while paternity was initially established via a paternity
affidavit under Indiana Code section 16-37-2-2.1, the order of the trial court
322. Id. The fathers have sixty days after execution of the paternity affidavit to request the
court to order genetic testing. Id. § 16-37-2-2.1(h).
323. Id. § 16-37-2-2.1(k).
324. 862 N.E.2d 308, 312-13 (Ind. Ct. App. 2007).
325. Id.
326. Id. at 310.
327. Id.
328. Id.
329. Id.
330. Id. at 311.
331. Id. at 312.
332. Id.
333. Id.
334. Id.
335. Id. at 313.
336. Id.
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changed the initial status and established paternity in Davis under Indiana Code
section 31-14-4.337 The court of appeals rejected Davis’s call for them to declare
that Indiana Code section 16-34-2-2.1 “trumps” Indiana Code section 31-14-4,
finding that the two statutes could be reconciled and the proper legislative intent
be determined.338
Along the same lines as Davis, the court also decided the case of In re
Paternity of E.M.L.G.339 In this case the putative fathers had each executed
paternity affidavits and allowed the sixty-day time period to expire without filing
a request for genetic testing under Indiana Code section 16-37-2-2.1.340 The
county prosecutor’s office brought an action to establish a child support order
based on each father’s execution of a paternity affidavit, and a hearing was
conducted by the trial court.341 At the child support hearings each of the putative
fathers “requested the court to order genetic testing,” which the trial court
granted.342 The state filed motions to correct error for each case; upon denial by
the trial court, the state appealed.343
On appeal, the court framed the issue as “whether the trial court properly
granted four putative fathers’ requests for genetic testing to disestablish paternity
under Indiana Code section 31-14-6-1.”344 As the court stated, Indiana Code
section 31-14-6-1 provides that “‘[u]pon the motion of any party, the court shall
order all the parties to a paternity action to undergo blood or genetic testing.”345
The prosecutor’s office had labeled these proceedings as support matters, but the
trial court treated them as an establishment of paternity.346 In rejecting the trial
court’s logic the court of appeals noted that
Indiana Code section 31-14-2-1 (1998) provides for two ways to
establish paternity: “(1) in an action under [article 14 governing
proceedings for establishing paternity] or (2) by executing a paternity
affidavit in accordance with [Indiana Code section] 16-37-2-2.1.”
(Emphasis added). Furthermore, Indiana Code [s]ection 31-14-7-3
337. Id.
338. Id.
339. 863 N.E.2d 867 (Ind. Ct. App. 2007). This appeal combined four similar cases. Id. at
868.
340. Id. at 869. All the paternity affidavits were signed before the July 1, 2006 effective date
of the amendments to Indiana Code section 16-37-2-2.1 by P.L. 145-2006. Id. at 869 n.2.
Therefore, the court had to rely on the version of the statute in existence before such amendments
became effective. Id.; see Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002).
341. E.M.L.G., 863 N.E.2d at 868. “Each hearing was conducted more than sixty days after
the father had executed a paternity affidavit.” Id.
342. Id. “Even though these were child support hearings, the trial court stated that it treated
such support hearings as hearings to establish paternity.” Id.
343. Id.
344. Id.
345. Id. at 869 (quoting IND. CODE § 31-14-6-1 (1998)).
346. Id.
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(2001) provides that “[a] man is a child’s legal father if the man
executed a paternity affidavit in accordance with Indiana Code [s]ection
16-37-2-2.1 and the paternity affidavit has not been rescinded or set
aside under Indiana Code section 16-37-2-2.1.” To rescind or set aside
a paternity affidavit, a putative father may “within sixty (60) days of the
date a paternity affidavit is executed . . . file an action in a court with
jurisdiction over paternity to request an order for a genetic test.”347
Because the fathers had signed paternity affidavits pursuant to the statute and
did not rescind or set aside the affidavits within the sixty-day time frame
provided for under Indiana Code section 16-37-2-2.1, the court reasoned that,
“under the plain, unambiguous language of the statute,” paternity [had] already
[been] established” prior to the hearings even being conducted.348 None of the
putative fathers had sought to set aside the paternity affidavits on the grounds of
fraud, duress, or material mistake of fact, but “the trial court rescinded the
paternity affidavits on the grounds that the men were allegedly not aware of the
legal ramifications of the document when they signed the paternity affidavits.”349
The court rejected this position of the trial court, holding that such was “not a
valid statutory reason for setting aside the paternity affidavits.”350 The court
went on to note that the trial below amounted to nothing more than an action to
disestablish paternity.351 The court pointed out that “‘[t]he Indiana code has no
provision for the filing of an action to disestablish paternity.’”352 The court of
appeals stated that under the paternity statutes a trial court does not have the
authority to treat child support proceedings as proceedings to disestablish
paternity.353 The matter was reversed and remanded to the trial court.354
In re Paternity of C.M.R.,355 the court decided that an order for genetic
347. Id. (alteration in original) (quoting IND. CODE § 16-37-2-2.1 (2001)).
348. Id.
Indiana Code section 16-37-2-2.1(i) further provides that: “[a] paternity affidavit that
is properly executed under this section may not be rescinded more than sixty (60) days
after the paternity affidavit is executed unless a court has determined that fraud, duress,
or material mistake of fact existed in the execution of the paternity affidavit.”
Id.
349. Id.
350. Id. It appears that ignorance of the law is not a defense. Id.
351. Id.
352. Id. (alteration in original) (quoting In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind.
Ct. App. 2005)).
353. Id. at 870. “Indiana’s paternity statutes were created to avoid such an outcome, which
could carry with it countless ‘detrimental emotional and financial effect[s].’” Id. (alteration in
original) (quoting Johnson Controls, Inc. v. Forrester, 704 N.E.2d 1082, 1085 (Ind. Ct. App.
1999)). The court noted that “[i]f genetic testing were to disestablish paternity, then each child
would be considered a ‘filius nullius,’ which in Latin means a son of nobody.’” Id.
354. Id. at 871.
355. 871 N.E.2d 346, 351 (Ind. Ct. App. 2007).
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testing is void where there is a failure to join necessary parties. In this case the
county prosecutor brought an action to determine the paternity of C.M.R.356 The
putative father was deceased when the trial court ordered the genetic testing of
the father’s former girlfriend and her two children to determine if their deceased
father was the father of C.M.R.357 The former girlfriend appealed the trial court’s
order for genetic testing of her and her two children.358
On appeal, the court found that several necessary parties had not been joined
in the paternity action.359 The court noted that “Indiana Code [s]ection 31-14-5-6
provides that ‘the child, the child’s mother, and each person alleged to be the
father are necessary parties to each [paternity] action.’ ‘A necessary party is one
who must be joined in the action for a just adjudication.’”360 The court observed
that the State had not petitioned to open the putative father’s estate so that its
interest and the interest of its heirs could be presented.361 Therefore, the order
for genetic testing was void.362
As for the former girlfriend, the court pointed out that “Indiana Code Section
31-14-6-1 contemplates that only parties to a paternity action may be ordered to
undergo genetic testing.”363 As for her children, the court stated that “[t]he
record suggest[ed] that they would be necessary parties to the action” because
they are collecting or receiving their father’s survivor benefits, but since C.M.R.
may very well claim some of those benefits they should be given an opportunity
to appear, answer, and defend their interests.364
In conclusion, the court found that the order for genetic testing was void due
to a failure to join necessary parties and on remand instructed the trial court to
determine which of the participants should be joined as parties, and to have those
parties served, and to give them an opportunity to appear, answer, and defend.365
G. Miscellaneous Issues
1. Child’s Name.—During the survey period two cases involving the
surname of a child in a paternity context were decided.
The first case, In re Change of Name of Fetkavich,366 involved a matter of
first impression as to who is a necessary party in a proceeding to change a child’s
surname. In this case the mother petitioned the court to change the surname of
356. Id. at 347-48.
357. Id. at 347. The mother of C.M.R. is not the same person as the father’s former girlfriend.
Id.
358.
359.
360.
361.
362.
363.
364.
365.
366.
Id. at 348-49.
Id. at 349.
Id. (quoting In re Paternity of H.J.F., 634 N.E.2d 551, 552 (Ind. Ct. App. 1994)).
Id. at 350.
Id.
Id.
Id. at 350-51.
Id. at 351.
855 N.E.2d 751, 754-55 (Ind. Ct. App. 2006).
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her minor son to that of his stepfather.367 The mother and father were never
married, and the child never bore the father’s last name.368 At the time of the
filing of the petition, the mother was using the stepfather’s surname, and the
child’s surname appeared to be the mother’s maiden name, although that was not
clear from the court’s opinion.369 The father had visited the child “ten to twenty
times in his lifetime,” and had created an irrevocable trust with $280,000 to
provide child support for the child.370
The court held a hearing on the petition at which the father was represented
by counsel.371 The trial court granted a request for a separation of witnesses
which had the unlikely result of the trial court ordering the father out of the court
room until after he had testified.372 At the conclusion of the hearing the trial
court issued an order granting the request to change the child’s last name to that
of his stepfather.373
The dispositive issue on appeal was whether the trial court committed
reversible error by preventing the father from being present in court during the
hearing.374 The father contended that he was “not a mere witness at the hearing
but that he was a party” to the action and “had a right to be in court during the
hearing.”375 In reversing, the court of appeals noted that “[t]he definition of
‘party’ in the context of a name change proceeding is a matter of first impression
for this court.”376 If the father was a necessary party to the name change then his
exclusion from the courtroom by the trial court constituted reversible error.377
In determining that both parents are parties to an action to change a child’s
surname the court observed that Indiana case law recognizes that “[a] father and
mother enjoy equal rights with regard to naming their child.”378 The father
enjoys a legal right with regard to naming his child and, pursuant to Indiana Trail
Rule 19, is a necessary party to a proceeding regarding the change of his minor
367. Id. at 753.
368. Id. at 752.
369. See id.
370. Id. at 752-53. The last visit was two years before the name change and petition was filed
by the mother. Id.
371. Id. at 753.
372. Id.
373. Id.
374. Id. at 754.
375. Id.
376. Id.
377. Id. at 755. The court of appeals relied on Jordan v. Deery, 778 N.E.2d 1264, 1272 (Ind.
2002), in which the Indiana Supreme Court noted the right of a party to an action to be personally
present during trial is so universally understood to exist that “‘[c]itation of authority is not required
to sustain the proposition.’” Fetkavich, 855 N .E.2d at 756 (alteration in original) (quoting Jordan,
778 N.E.2d at 1272)).
378. Id. at 755 (citing Tibbitts v. Warren, 668 N.E.2d 1266, 1267 (Ind. Ct. App. 1996); In re
the Change of Name of J.N.H., 659 N.E.2d 644, 646 (Ind. Ct. App. 1995)).
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child’s name.379
The second case regarding name change is Petersen v. Burton,380 which
involved two interesting questions in the context of the surname of a minor child
in a paternity proceeding. One issue was who bears the burden of proof and what
that proof is.381 The other issue was which parent the statutory presumption
found in Indiana Code section 34-28-2-4(d) favors.382 The father requested that
the court change the child’s surname to that of the father.383 The trial court
granted the father’s petition and changed the child’s surname.384 The mother
appealed.385
The court of appeals affirmed the trial court, determining that Indiana Code
section 34-28-2-4(d) provides that “‘[a] biological father seeking to obtain a
name change of his nonmarital child bears the burden of persuading the court that
the change is in the child’s best interests.’”386 The court also determined that
“‘whether it is in the best interest for [such a child] to be given the father’s
surname when paternity has been established is an issue to be resolved on a caseby-case basis.’”387 Here the father satisfied that burden by convincing the court
that his actions did “demonstrate a genuine desire to form a parent-child
relationship.”388 He consistently paid child support and exercised visitation on
a “fairly regular” basis.389 The father testified that having the child bear his
surname would foster the parent-child relationship and allow him to forge closer
379. Id. Indiana Trial Rule 19 provides that
a person who is subject to service of process shall be joined as a party if in the action
if “he claims an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may . . . as a practical matter impair or impede
his ability to protect that interest[.]”
Id. (quoting IND. TRIAL R. 19(A)(2)(a)).
380. 871 N.E.2d 1025, 1028 (Ind. Ct. App. 2007).
381. Id.
382. Id. Indiana Code section 34-28-2-4(d) states that
the trial court shall recognize a presumption in favor of the parent who (1) has been
making support payments and fulfilling other duties in accordance with the decree
issued under [the dissolution, child support, or custody and parenting time statutes]; and
(2) objects to the proposed name change of the child.
Id. (quoting IND. CODE § 34-28-2-4(d) (2004)).
383. Id. at 1027. At the time of the father’s petition the surname of the child was not the
mother’s surname by birth nor was it even her current last name. Id. at 1026-27. Rather is was the
surname of the mother’s stepfather. Id.
384. Id. at 1027.
385. Id.
386. Id. at 1029 (quoting In re Paternity of Tibbitts, 668 N.E.2d 1266, 1267-68 (Ind. Ct. App.
1996)).
387. Id. at 1029 (quoting Tibbitts, 668 N.E.2d at 1269).
388. Id.
389. Id. at 1029-30.
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ties with his son.390
With respect to the presumption found in Indiana Code section 34-28-2-4(d),
the mother argued that she was entitled to the presumption and that the father was
required to overcome that presumption as well as her objection to the proposed
name change of the child.391 The father argued that “the presumption applies
only to noncustodial parents who satisfy the statutory requirements.”392 The
court of appeals agreed, finding that: “Our research did not reveal any cases
where the presumption has been applied to a custodial parent. For these reasons,
we conclude that the presumption created in Indiana Code Section 34-28-2-4(d)
does not apply to Mother, the custodial parent, in this case.”393
The court further observed that “[l]imiting the application of this statutory
presumption to noncustodial parents, primarily fathers, . . . may appear outdated
in light of modern attitudes and practices regarding surnames of children born
out-of-wedlock,” but stated that “it is for the legislature . . . to make any
revisions.”394
2. Contempt.—The Indiana Court of Appeals affirmed the trial court’s
decision not to hold a mother in contempt for her failure to follow the court’s
order not to smoke in the child’s presence in Heagy v. Kean.395 In determining
whether the mother should be held in contempt of court, the trial court relied on
Indiana Code section 34-47-3-1396 which makes a person guilty of contempt by
an act that is a “willful disobedience” of an order.397 In this case, the mother
stated that she did not realize she was violating the order at the time she was
390. Id. at 1030. The court further noted that the mother-child relationship is generally less
affected by the child’s surname. Id. at 1029. The court observed that “‘[i]t is not necessary for a
mother to come to court to establish her blood relationship to her own child’” and that the origin
of the mother-child relationship is inherently known. Id. (quoting Tibbitts, 668 N.E.2d at 1269).
On the other hand, there is no such presumption for the father of a child born out-of-wedlock. Id.
In order for that child “‘to inherit from the father or to receive the benefits of support and visitation,
the father must be legally determined.’” Id. (quoting Tibbitts, 668 N.E.2d at 1269). The legal
determination of paternity provides practical benefits as well as symbolic ones. Id.
391. Id. at 1028.
392. Id.
393. Id.
394. Id. at 1028-29.
395. 864 N.E.2d 383, 385 (Ind. Ct. App.), trans. denied, 878 N.E.2d 205 (Ind. 2007).
396. Indiana Code section 34-47-3-1 provides:
A person who is guilty of any willful disobedience of any process, or any order lawfully
issued:
(1) by any court of record, or by the proper officer of the court;
(2) under the authority of law, or the direction of the court; and
(3) after the process or order has been served upon the person; is guilty of an indirect
contempt of the court that issued the process or order.
Id. at 385-86 (quoting IND. CODE § 34-7-3-1 (2004)).
397. Id.
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smoking around the child.398 Although the trial court ordered her to pay a portion
of the father’s attorney’s fees for bringing the action, the mother was not held in
contempt.399
The holding in Heagy and subsequent affirmation from the court of appeals
could potentially provide an incentive for parents to argue that they did not
willfully violate the courts order because they did not realize that they were
doing so until after the fact.
III. CHILD SUPPORT
A. Modification
The court of appeals in In re Marriage of Kraft400 reversed the trial
court’s denial of a father’s petition for modification of child support. The parties
in Kraft modified their original agreement of settlement in 2004 with a mediated
agreement regarding the father’s weekly child support.401 The agreement stated
in part, “[t]his agreement is a compromise between the parties of several
competing positions expressed during mediation and may not be consistent with
the Indiana Child Support Guidelines.”402 Soon thereafter,403 the father filed a
petition to modify his obligation on the basis of “a substantial and continuing
change of circumstances regarding his employment.”404 The trial court modified
the father’s child support obligation.405 On appeal, the court held that the father
was not entitled to a modification after he failed to prove “‘changed
circumstances so substantial and continuing’” in nature as to make the previous
order “‘unreasonable.’”406 Furthermore, the court held that he was not entitled
to a modification because it had been less than twelve months since his previous
child support order.407
398. Id. at 387-88.
399. Id. at 388.
400. 868 N.E.2d 1181, 1182 (Ind. Ct. App. 2007).
401. Id. at 1183.
402. Id.
403. October 27, 2004. Id.
404. Id. The father alleged that his salary had been significantly reduced to business
restructuring and lost contracts. Id.
405. Id.
406. Id. at 1184 (quoting Kraft v. Kraft, 842 N.E.2d 895 (Ind. Ct. App. 2006) (unpublished
table decision)). The court of appeals found that the father’s company did not lose a contract that
they previously held; they only failed to obtain the contract as they had hoped they would. Id.
Furthermore, although the father “made a personal cut” to his annual salary, the “$14,400.00 salary
reduction does not independently establish that [f]ather sustained a ‘continuing’ reduction in
income such that the existing order is ‘unreasonable.’” Id. The court also looked at other factors
such as the father’s investments and significant home equity. Id.
407. Id. at 1185. See IND. CODE § 31-16-8-1 (Supp. 2007), which provides:
(a) Provisions of an order with respect to child support or an order for maintenance
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Over a year later,408 the father filed another petition to modify his child
support.409 The father’s main contention in his petition was that he changed
employment positions and was no longer able to make the additional income
from bonuses as he had anticipated at the time of the mediated agreement.410 The
father appealed the trial court’s denial of his petition.411 There was no dispute
that the father met the requirements for the lapse of time and percentage of
change required by statute.412 Because the father’s child support order was based
on a mediated agreement, the mother argued that prior Indiana case law413 held
that in order to receive a modification of child support the father was required to
show “changed circumstances so substantial and continuing as to make the terms
unreasonable.”414 In a very long opinion that analyzed prior decisions,415 the
court of appeals reversed the trial court’s denial of the father’s petition and
remanded the matter to the trial court for proceedings consistent with its
findings.416 The court ultimately held that it did not matter whether the father’s
child support was based on a court hearing or a mediated agreement; the statute
(ordered under [Indiana Code section] 31-16-7-1 or [Indiana Code section] 31-1-11.59(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to
make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by
more than twenty percent (20%) from the amount that would be ordered by
applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve
(12) months before the petition requesting modification was filed.
(c) Modification under this section is subject to [Indiana Code section] 31-25-417(a)(6).
408. February 2, 2006. In re Marriage of Kraft, 868 N.E.2d at 1184.
409. Id.
410. Id. According to the mother, the father’s “$274,000.00 income in their mediation
agreement was reached by taking a three-year average of his past incomes with bonuses.” Id.
411. Id. at 1184-85. The trial court’s decision will only be reversed upon a showing of abuse
of discretion. Id. (citing In re E.M.P. 722 N.E.2d 349, 351 (Ind. Ct. App. 2000)).
412. Id.; see IND. CODE § 31-16-8-1 (Supp. 2007).
413. Hay v. Hay, 730 N.E.2d 787, 794 (Ind. Ct. App. 2000).
414. Kraft, 868 N.E.2d at 1186.
415. Id. at 1186-89. The language in Hay requiring modification upon showing substantial
changed circumstances independent of the twenty percent deviation for modification was dicta. It
is contrary to the clear language of Indiana Code section 31-16-8-1 (Supp. 2007). Id. at 1186-87.
In light of the Indiana Supreme Court’s language in Meehan v. Meehan, 425 N.E.2d 157, 160 (Ind.
1981), where the trial court was reversed for straying from the language of the support modification
statute, the dicta in Hay, should be disregarded. Kraft, 868 N.E.2d at 1187-88.
416. Kraft, 868 N.E.2d at 1190.
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should be interpreted the same in both situations.417 The court of appeals further
found that the father would have been entitled to a modification even if he was
required to meet the requirements of a substantial and continuing change of
circumstances.418
B. Retroactive Modification
In Whited v. Whited,419 the Indiana Supreme Court granted transfer of a
portion of the court of appeals decision420 that retroactively modified a father’s
child support obligation to take into account the time the parties’ children stayed
with him.421 Even though more than eleven years had passed since the
emancipation of the youngest child subject to an in gross child support order, the
change of custody exception to the rule against retroactive modification was not
available due to the fact that at least one child remained living with the mother
at all times.422 The father was not entitled to a retroactive modification even
though it could be shown that the father acted in good faith by reducing his in
gross child support obligation proportionately based on the number of children
residing with the mother at any one time.423 The court stated that “when a court
enters an order in gross, that obligation similarly continues until the order is
modified and/or set aside, or all of the children are emancipated, or all of the
children reach the age of twenty-one.”424 The court strongly suggested that it
would be much simpler for parties to submit agreed modifications of child
support in instances where the parties agree that in gross orders are no longer
417. Id. at 1189. The court of appeals agreed with the father’s analysis that “parents [would
be] less likely to reach such agreements regarding child support if they will have a ‘tougher time
changing the agreement later’ and that ‘having such an added burden would do nothing but
discourage parents from ever agreeing to pay more than absolutely necessary.’” Id. (quoting
Appellant’s Brief, Kraft, 868 N.E.2d 1181 (No. 22A04-0612-CV-752)).
418. Id. at 1189-90. Even if the dicta in Hay were law, the excess support in the mediation
agreement was based upon a compromised income almost three times greater than the income at
the time of the hearing on the petition to modify. Id. Such a reduction in income amounts to a
changed circumstance so substantial and continuing as to make the terms of the current order
unreasonable. Id.
419. 859 N.E.2d 657 (Ind. 2007).
420. See Ruppert & Sedberry, supra note 2, at 916-17 (discussing Whited at both trial and
appellate levels).
421. Whited, 859 N.E.2d at 660-61.
422. Id. at 663-64.
423. Id.
424. Id. at 661 (citing Ogle v. Ogle, 769 N.E.2d 644 (Ind. Ct. App. 2002); Schrock v. Gonser,
658 N.E.2d 615 (Ind. Ct. App. 1996)). Indiana has historically been very harsh in this area, even
disallowing automatic reductions to in gross orders after the death of one of the children referenced
in the order. Id. (citing Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997); Kaplon v. Harris, 567
N.E.2d 1130, 1132-33 (Ind. 1991)).
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representative of their situation.425
C. Credit for Social Security Retirement Benefits
Social Security benefits and their treatment have been a revolving and
reoccurring issue with the Indiana courts.426 In Thompson v. Thompson,427 the
court tried to reconcile prior Indiana Supreme Court and Indiana Court of
Appeals decisions together with recognition of the fact that the Indiana Child
Support Guidelines do not deal with third party sources of income paid directly
to children. The Thompson court held that “a trial court abuses that discretion
in setting support at a level that varies to such an extent from the standard of
living that the child would have enjoyed had the family remained intact.”428
There is also an abuse of discretion where the amount of support ordered
“devotes substantially higher percentages of total family income to such support
for families receiving Social Security benefits than those that do not.”429
D. Post-secondary Educational Expenses
In Quinn v. Threlkel,430 the mother filed a petition for modification of the
father’s child support and for a determination of responsibility for college
expenses. In this case, the parties’ daughter attended a private college.431 The
daughter obtained student loans in addition to her scholarships and grants.432 The
father also contributed a substantial sum to tuition.433 Due to the mother having
a spouse that could support her financially, the mother’s income was
425. Id.
426. The Indiana Supreme Court provided in Brown v. Brown, 849 N.E.2d 610, 612 (Ind.
2006), that “a disabled parent is entitled to a credit against the parent’s support obligations for
Social Security disability benefits paid to a child” and in Stultz v. Stultz, 659 N.E.2d 125, 128 (Ind.
1995), “that such a credit is not automatic” for Social Security retirement benefits received by the
minor child of divorcing parents. Rather, the receipt of such benefits is a factor to be considered
by the trial court in setting support. Id. Note the main difference between Brown and Stultz is the
type of benefit; Brown considers disability benefits, while Stultz focuses on retirement benefits. See
Brown, 849 N.E.2d at 612; Stultz, 659 N.E.2d at 126.
427. 868 N.E.2d 862, 865-69 (Ind. Ct. App. 2007).
428. Id. at 869.
429. Id. This ruling only evaluates when the trial court has abused its discretion and does not
provide practitioners with a clear cut way to calculate child support where Social Security benefits
are involved. The practical analysis may be for practitioners to add any retirement benefits received
by the parents and children into the combined family income to determine the benefit the child
would be receiving if the family remained intact and then reduce the retiree’s child support
obligation by the amount the child is receiving in retirement benefits.
430. 858 N.E.2d 665, 668 (Ind. Ct. App. 2006).
431. Id.
432. Id.
433. Id. The father had contributed “approximately $6000 towards [the child’s] college
expenses before the hearing.” Id.
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substantially lower than the father’s at the time of the hearing.434 At the father’s
request and without objection from the mother, the trial court awarded the child
dependency tax exemption for the parties’ daughter to the father beginning with
the 2005 tax year.435 The trial court expressed strong disagreement with the
parties’ willingness to allow their daughter to obtain student loans when their
combined incomes were over $100,000 annually.436 The court went so far as to
forbid the parents from allowing the child to take out any further student loans
and required them to repay her current loans.437 The trial court also disagreed
with the use of any post-secondary education worksheet to determine the father’s
support obligation while the child was home from college and staying with the
mother.438 The father was ordered to pay support only in the weeks that the
parties’ daughter was at home for at least seven days,439 and the parties’
contribution to college expenses was set at an arbitrary percentage.440
The court of appeals held that the trial court’s failure to adopt one of the
parties’ verified, properly executed, post-secondary education worksheets or to
base the college expense order on its findings using the methodology of the Child
Support Guidelines was error and remanded it to the trial court.441 The court of
appeals also instructed the trial court to consider and apportion part of the
expense to the child.442 The trial court’s scolding of parents for allowing the
child to take out modest loans to invest in her own education was
inappropriate,443 especially in light of the fact that subsidized loans cannot be
obtained without a showing of need.444 Finally, after consideration of the
relevant factors to be considered by trial courts in deciding who shall be entitled
434. Id. The father earned approximately $86,000 in 2003, $61,500 in 2004, and $100,000
in 2005. Id. The mother was previously employed with a salary of $34,000, but had an income of
only $10,000 in 2005. Id.
435. Id.
436. Id. at 669.
437. Id.
438. Id. The mother’s residence was located very close to the daughter’s college, and the
mother reported that daughter visited home frequently. Id. at 668.
439. Id. The court of appeals was concerned about the potential for a tug-of-war involving the
parties’ daughter with the mother wanting her to visit so she would get child support and the father
encouraging the opposite so he did not have to pay child support. Id. at 673.
440. Id. at 668, 671. The trial court ordered the father to pay seventy-one percent and the
mother to pay twenty-nine percent, even though the trail court did not consider a post-secondary
education worksheet. Id.
441. Id. at 671.
442. Id.
443. Id. at 672. The trial court was also directed to “reconsider its absolute prohibition against
[the daughter] taking out any loans to help pay for her education at a private school, and especially
its requirement that the parties repay the loans she already took out during the 2005-06 school
year.” Id.
444. Id. at 671-72.
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to the tax exemption,445 the court of appeals held that the trial court did not abuse
its discretion when it awarded the tax exemption for the parties’ daughter to the
father.446
In re the Marriage of Hensley447 was another post-secondary educational case
during this survey period. The trial court in Hensley ordered the father to be
responsible for eighty-six percent of the educational expenses of the parties’
children448 and also ordered the father to reimburse the mother for over $60,000
in past tuition for the children.449 After all of the support orders, including child
support, were taken into consideration, the father would have been expected to
support himself450 on less than $4300 per year.451 The court of appeals found this
445. The Indiana Child Support Rules and Guidelines section on tax exemptions provides:
Development of these Guidelines did not take into consideration the awarding of the
income tax exemption. Instead, it is recommended that each case be reviewed on an
individual basis and that a decision be made in the context of each case. Judges and
practitioners should be aware that under current law the court cannot award an
exemption to a parent, but the court may order a parent to release or sign over the
exemption for one or more of the children to the other parent pursuant to I.R.C. s
152(e). To effect this release, the parent releasing the exemption must sign and deliver
to the other parent I.R.S. Form 8332, Release of Claim to Exemption for Child of
Divorced or Separated Parents. The parent claiming the exemption must then file this
form with his or her tax return. The release may be made, pursuant to the Internal
Revenue Code, annually, for a specified number of years or permanently. Judges may
wish to consider ordering the release to be executed on an annual basis, contingent upon
support being current at the end of the calendar year for which the exemption is ordered
as an additional incentive to keep support payments current. It may also be helpful to
specify a date by which the release is to be delivered to the other parent each year.
Shifting the exemption for minor children does not alter the filing status of either parent.
In determining when to order a release of exemptions, it is recommended that at
minimum the following factors be considered:
(1) the value of the exemption at the marginal tax rate of each parent;
(2) the income of each parent;
(3) the age of the child(ren) and how long the exemption will be available;
(4) the percentage of the cost of supporting the child(ren) borne by each parent; and
(5) the financial burden assumed by each parent under the property settlement in the
case.
IND. CHILD SUPPORT GUIDELINES 6 cmt. (2004).
446. Quinn, 858 N.E.2d at 675-76.
447. 868 N.E.2d 910 (Ind. Ct. App. 2007).
448. Id. at 912. The mother’s income was found to be $210 per week (an imputation of
minimum wage) and the father’s income was $1,286.87 per week, which is approximately eightysix percent of the parties’ total income. Id. at 914-15.
449. Id. at 916.
450. The court noted that the father was a hard worker, already working over sixty hours per
week to support himself and his four children, while the mother was unemployed and would have
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to be “inequitable and unjust”452 in that the trial court failed to consider the
parents’ ability to meet the needs as required by the Indiana Code.453
E. Voluntary Underemployment and Irregular Income454
Meredith v. Meredith455 reviewed the trial court’s finding that the father was
voluntarily underemployed after he voluntarily took an early retirement in order
to increase his monthly pension amount.456 The court affirmed the trial court’s
decision and held that where a support payor voluntarily takes early retirement
and does not seek new employment solely for the purpose of increasing his
monthly retirement benefit and despite being able to work, the court of appeals
will not reverse the trial court’s finding of voluntary unemployment.457
The Meredith court also analyzed the trial court’s calculation of the father’s
potential income and held that the determination of potential income is fact
sensitive.458 The Indiana Child Support Guidelines, however, suggest that the
weekly gross income must be set at least at the minimum wage level.459 The trial
court’s use of the father’s previous four years of tax returns, which included
substantial irregular overtime pay, to average his income for purposes of
determining potential income was an error under the circumstances.460 The
father’s pension income plus minimum wage would be similar to his pre-
money to spare under the trial court’s order. Id. at 916-17. An affirmation of the trial courts order
would have penalized hard work and rewarded the mother for remaining unemployed. Id. at 917.
451. Id. at 916.
452. Id.
453. Id. (citing IND. CODE § 31-16-6-2 (Supp. 2007)).
454. Meredith v. Meredith, 854 N.E.2d 942 (Ind. Ct. App. 2006), was decided on October 6,
2006, just after the close of the survey period for 2006. Due to it being a case of first impression,
it was also discussed in last year’s edition of this Article. See Ruppert & Sedberry, supra note 2,
at 919.
455. 854 N.E.2d 942, 945-46 (Ind. Ct. App. 2006).
456. Meredith is distinguishable from In re Paternity of E.M.P., 722 N.E.2d 349 (Ind. Ct. App.
2000), due to the father’s ability to work in Meredith coupled with the fact that he did not seek new
employment making a comparable income after his retirement. Meredith, 854 N.E.2d at 947-48.
457. Id.
458. Id. at 948-49.
459. Id. at 949. The Indiana Child Support Guidelines provide:
If a parent is voluntarily unemployed or underemployed, child support shall be
calculated based on a determination of potential income. A determination of potential
income shall be made by determining employment potential and probable earnings level
based on the obligor’s work history, occupational qualifications, prevailing job
opportunities, and earnings levels in the community. If there is no work history and no
higher education or vocational training, it is suggested that weekly gross income be set
at least at the federal minimum wage level.
IND. CHILD SUPPORT GUIDELINES 3(A)(3) cmt. (2004).
460. Meredith, 854 N.E.2d at 949.
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retirement hourly wage without overtime.461 Either of those amounts would have
served as a proper basis for the father’s potential income because both would
reflect the fact that the father is voluntarily unemployed, but would not dictate
that the father base his employment decisions strictly upon maintaining the prior
amount of his income which included overtime pay.462
F. Imputation of Income During Incarceration
In Lambert v. Lambert,463 the Indiana Supreme Court reviewed an issue that
was a matter of first impression at the appellate level.464 After reviewing the
various approaches in other states on the issue of calculating child support during
incarceration,465 the court of appeals’ decision was vacated in part and affirmed
in part, and the case remanded to the trial court. The court stated that “[w]hile
our Child Support Guidelines obligate every parent to provide some support even
when they have no apparent present income, it was error to set support based on
employment income that plainly would not be there during incarceration.”466 The
supreme court agreed with the appellate court that “most criminal activity reflects
a voluntary choice, and carries with it the potential for incarceration and
consequent unemployment.”467 However, the court went on to make a distinction
between unemployment due to incarceration and unemployment that is voluntary
by saying that “[t]he choice to commit a crime is so far removed from the
decision to avoid child support obligations that it is inappropriate to consider
them as identical.”468
461. Id.
462. Id. at 949-50.
463. 861 N.E.2d 1176 (Ind. 2007).
464. See Ruppert & Sedberry, supra note 2, at 917-18 (discussing Lambert at both the trial and
appellate levels).
465. Lambert, 861 N.E.2d at 1177-79. The court discussed Leasure v. Leasure, 549 A.2d 225,
227 (Pa. Super. Ct. 1988) and examined the Absolute Justification Rule approach. Lambert, 861
N.E.2d at 1178. Leasure was later disapproved by the Pennsylvania Supreme Court. See Yerkes
v. Yerkes, 824 A.2d 1169, 1172 n.12 (Pa. 2003). Other states, such as Montana and Iowa, “have
concluded that it is appropriate to impute pre-incarceration income to the non-custodial parent” and
used the Imputation of Pre-Incarceration Income Allowed Rule. Lambert, 861 N.E.2d at 1178.
These states focus mainly on “whether incarceration constitutes a voluntary reduction of income.”
Id. Mooney v. Brennan reasoned that “‘a criminal should not be offered a reprieve from [his] child
support obligations when we do not do the same for one who becomes voluntarily unemployed.’”
Id. (alteration in original) (quoting Mooney v. Brennan, 848 P.2d 1020, 1022-23 (Mont. 1993)).
The disallowing imputation of pre-incarceration income rule followed by Nebraska in State v.
Porter states “that imposing pre-incarceration income on a felon would conflict with the state’s
child support guidelines precisely because an imprisoned individual had no ‘earning capacity.’”
Id. (quoting State v. Porter, 610 N.W.2d 23, 28-29 (Neb. 2000)).
466. Lambert, 861 N.E.2d at 1176.
467. Id.
468. Id. at 1180.
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The court rejected the idea of suspending child support obligations while a
parent is incarcerated as contrary to Indiana law.469 Rather, the court supported
the idea of not imputing income but rather imposing the minimum support
requirements provided by the Child Support Guidelines.470 The Indiana Supreme
Court decision in Lambert only “counsels against imputing pre-incarceration
wages, salaries, commissions, or other employment income to the individual. A
court may, obviously, still consider other sources of income when calculating
support payments.”471 The court’s decision reminds its readers that “a court
could prospectively order that child support return to the pre-incarceration level
upon a prisoner’s release because following release, the parent is theoretically
able to return to that wage level.”472 The burden to modify would then fall on the
previously incarcerated parent.473
G. Post-Divorce Support of a Guardianship Ward of the Parties
As a matter of first impression, the Indiana Supreme Court in In re Marriage
of Snow474 held that the doctrine of in loco parentis475 should not be allowed to
469. Id. at 1179. Indiana Code section 31-16-6-6 provides the following:
(a) The duty to support a child under this chapter ceases when the child becomes
twenty-one (21) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming twenty-one (21) years of age. In this case
the child support, except for the educational needs outlined in section 2(a)(1) of this
chapter, terminates at the time of emancipation, although an order for educational needs
may continue in effect until further order of the court.
IND. CODE § 31-16-6-6 (Supp. 2007).
470. Lambert, 861 N.E.2d at 1179-80. The Indiana Child Support Guideline provides:
The Guideline’s schedules for weekly support payments do not provide an amount of
support for couples with combined weekly adjusted income of less than $100.00.
Consequently the Guidelines do not establish a minimum support obligation. Instead
the facts of each individual case must be examined and support set in such a manner that
the obligor is not denied a means of self-support at a subsistence level. It is, however,
recommended that a specific amount of support be set. Even in situations where the
noncustodial parent has no income, courts have routinely established a child support
obligation at some minimum level. An obligor cannot be held in contempt for failure
to pay support when there is no means to pay, but the obligation accrues and serves as
a reimbursement if the obligor later acquires the ability to meet the obligation.
IND. CHILD SUPPORT GUIDELINES 2 cmt. (2004).
471. Lambert, 861 N.E.2d at 1182.
472. Id.
473. Id.
474. 862 N.E.2d 664, 667 (Ind. 2007).
475. “[A]dv. & adj. [Latin “in the place of a parent”] Acting as a temporary guardian of a
child.” BLACK’S LAW DICTIONARY 791 (7th ed. 1999). Niewiadomski v. United States discusses
in loco parentis by stating the doctrine “‘refers to a person who has put himself in the situation of
a lawful parent by assuming the obligations incident to the parental relation without going through
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impose an obligation to support a child on the adult standing in loco parentis
after the relationship has ended. In other words, “when a relationship of in loco
parentis exists, that status alone is an insufficient basis for imposing a child
support obligation on the stand-in parent.”476 Because the voluntary agreement
to contribute to the expenses of the child, post-divorce, should not be
characterized as spousal maintenance capable of being ordered by a court or child
support, the court determined the payments constituted an agreement concerning
property distribution which is not modifiable absent fraud or a contractual
provision between the parties permitting modification.477
H. Negative Child Support
In Grant v. Hager,478 the judgment of the trial court was reversed by the
Indiana Supreme Court and the case was remanded to the trial court for further
consideration. The court of appeals reversed the trial courts finding that the
mother, the custodial parent, should pay child support to the father, the noncustodial parent, in an amount equal to the amount his credits for insurance and
parenting time exceeded his child support obligation.479 The court’s holding was
based on the deviation authority granted to courts by Child Support Rule 3.480
More specifically, the court stated that
[g]iven this deviation authority, a court could order a custodial parent to
pay child support to a non-custodial parent based on their respective
incomes and parenting time arrangements if the court had concluded that
it would be unjust not to do so and the court had made the written
the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental
status and discharging the parental duties.’” Snow, 862 N.E.2d at 666 (quoting Niewiadomski v.
United States, 159 F.2d 683, 686 (6th Cir. 1947)).
476. Snow, 862 N.E.2d at 667.
477. Id. at 667-68. The court came to its holding for several reasons, the first being that
“Indiana policy disfavors entering a support order against adults who are not natural parents.” Id.
at 667. “Second, it makes little sense to require child support from a person in loco parentis when
that status is temporary in nature and essentially voluntary.” Id. The court went on to say “[i]t also
seems unwise to create a layer of financial risk for adults who voluntarily provide financial and
emotional support to children not their own.” Id. Furthermore, “it is difficult to imagine imposing
parallel obligations on the institutions (like juvenile courts or universities) to which in loco parentis
is commonly deployed.” Id.
478. 868 N.E.2d 801, 804 (Ind. 2007).
479. Id. at 802-03; see Ruppert & Sedberry, supra note 2, at 914-15 (discussing Grant v.
Hager at both the trial court and appellate levels).
480. Grant, 868 N.E.2d at 803. Indiana Child Support Rule 3 states “‘[i]f the court concludes
from the evidence in a particular case that the amount of the award reached through application of
the guidelines would be unjust, the court shall enter a written finding articulating the factual
circumstances supporting that conclusion.’” Id. (quoting IND. CHILD SUPPORT GUIDELINES 3
(2004)).
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finding mandated by Child. [sic] Supp. R. 3.481
Following the Indiana Supreme Court’s decision, which remanded the matter
to the trial court for “reconsideration in accordance with the principles
enunciated,” the trial court issued an order in which it made specific findings,
found that it would be unjust not to order support to be paid by the custodial
mother, and reinstated retroactively its order awarding child support payable by
the mother to the father in the amount of $92.00 per week.482 The mother then
appealed this order contending that the trial court committed error by not holding
a hearing prior to entering its findings of fact and judgment on remand.483 The
mother further alleged that the court failed to rely on appropriate facts when
concluding that the father had rebutted the presumptive child support obligation
as calculated by using the Indiana Child Support Guidelines.484 The court of
appeals affirmed the decision of the trial court and opined that it was not
necessary for the trial court to hold a hearing because the supreme court had not
instructed the trial court to conduct a new hearing.485 Regarding the mother’s
complaint that the trial court did not rely on appropriate facts, the court found
that the trial court had relied upon the respective incomes of the parents,
parenting time arrangements, and relevant payments being made by the parents
to support its determination.486 Thus, the trial court followed the principles
annunciated by the supreme court in its decision and committed no reversible
error.487
IV. GUARDIANSHIP : INCAPACITATED ADULT
In re Guardianship of Atkins488 is an emotional case focusing on the best
interests of an incapacitated, adult homosexual male.489 Patrick Atkins was in a
twenty-five-year committed relationship490 when he became incapacitated as a
result of a medical condition while on a business trip.491 Patrick’s life partner,
481. Id. at 804.
482. Grant v. Hager, 879 N.E.2d 628, 630-31 (Ind. Ct. App. 2008).
483. Id. at 631.
484. Id.
485. Id.
486. Id.
487. Id.
488. 868 N.E.2d 878 (Ind. Ct. App. 2007), trans. denied.
489. Id. at 880. While the sexual orientation of a person is not typically of noteworthy
importance, it is of utmost importance in this case as it is the main reason for the disagreements
over what is in Patrick’s best interest.
490. Id. at 881. Patrick’s family made it very clear through the years that they did not approve
of Patrick’s lifestyle. Id. at 880-81. Patrick’s brother testified that his mother told him “that if
Patrick was going to return to his life with Brett after recovering from the stroke, she would prefer
that he not recover at all.” Id. at 881.
491. Id. Patrick had an acute subarachnoid hemmorage and a ruptured aneurysm. Id. He also
suffered a stroke at some point during his hospital stay. Id.
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Brett, traveled to Atlanta to be with Patrick at the hospital but was eventually
excluded from visiting hours by Patrick’s family.492 After approximately six
weeks in intensive care in Atlanta, Patrick was moved to a nursing facility.493
Brett developed a good relationship with the staff of the facility and continued
to visit with Patrick after normal visiting hours so as not to be seen by Patrick’s
family.494 In June 2005, Brett filed a motion requesting to be Patrick’s guardian,
but Patrick’s parents opposed the motion, making their own motion to be
Patrick’s guardians.495 Brett withdrew his request to be guardian over Patrick’s
property, but continued to seek appointment as the guardian over his person.496
Brett later petitioned the court497 for an “order requiring the Atkinses to allow
him to visit and have contact with Patrick.”498
The trial court named Patrick’s parents, the Atkinses, as his co-guardians and
denied Brett’s request for the visitation order.499 The court of appeals500 affirmed
the trial court’s decision to name the Atkinses as Patrick’s co-guardians,501 but
492. Id. Although the family did not allow Brett to visit Patrick during visiting hours and went
so far as to add a sign to the door of his room that read “immediate family and clergy only,” the
“hospital staff defied the family’s instructions and allowed Brett to continue to visit with Patrick
early in the morning and in the evenings, outside of regular visiting hours.” Id.
493. Id.
494. Id. at 881-82.
495. Id. at 882.
496. Id.
497. Id. In November 2005, Brett filed a motion seeking the payment of a portion of his
attorney’s fees and costs from the guardianship estate. Id. The trial court denied his request, but
the court of appeals remanded it to the trial court with instructions “to calculate the amount of
Brett’s attorney fees and costs to be paid by the guardianship estate” after finding that the fees were
reasonably incurred in good faith and the expenditure of the fees was beneficial to Patrick. Id. at
888.
498. Id. at 882.
499. Id. at 882-83.
500. This case also involved the distribution of a Charles Schwab account that Patrick and
Brett accumulated together over the past twenty-five years that was in Patrick’s sole name. Id. The
court of appeals upheld the trial court’s decision to set the account aside to the guardianship estate.
Id. at 887-88.
501. Id. at 883-84. The standard of review was whether the trial court abused its discretion
in naming the Atkinses as co-guardians over Patrick. Id. at 883. Therefore, the court could not
conduct a de novo analysis of what they felt was in the best interests of Patrick. Id. at 883-84.
While they could not conclude there was an abuse of discretion on the part of the trial court, the
court of appeals expressed some concern in saying
[g]iven the Atkinses’ lack of support for their son’s personal life through the years and
given his mother’s astonishing statement that she would rather that he never recover
than see him return to his relationship with Brett, we are extraordinarily skeptical that
the Atkinses are able to take care of Patrick’s emotional needs.
Id.
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reversed their decision to deny Brett visitation rights.502 The court of appeals
found that overwhelming evidence503 lead to the conclusion that visits between
Patrick and Brett would be in Patrick’s best interest and directed the trial court
“to amend its order to grant Brett visitation and contact with Patrick as Brett
requested.”504
V. ADOPTION
A. Consent
The court of appeals in In re Adoption of J.E.H.505 affirmed the trial court’s
dismissal of a stepmother’s petition to adopt her two stepchildren based on the
lack of written consent by the oldest child, who was over the age of fourteen506
at the time of the hearing.507 The stepmother contended that the applicable
statute508 was ambiguous as to whether consent is necessary when the child is not
yet fourteen at the time of the petition but turns fourteen years of age before the
adoption hearing.509 Both the trial court and the court of appeals disagreed with
her rationale and held that the statute was clear and that her petition required
written consent by the oldest child.510
In re Adoption of T.W.511 involved the adoption of two children by their
maternal great-uncle and great-aunt, Gary and Rachel Silbernagel, after the
children were temporarily placed in their care.512 The Silbernagels obtained
temporary guardianship over the children while Matthew White, their father was
incarcerated. The Silbernagels sought counseling513 for the children and denied
502. Id. at 884-86.
503. Id. at 885. The evidence included testimony from Patrick’s guardian ad litem and an
impartial neurophysiologist. Id. at 884-85.
504. Id. at 886. The court of appeals held that because “the Atkinses have made it crystal clear
that, absent a court order requiring [them] to do so, they will not permit Brett to see their son, it was
incumbent upon the trial court to order visitation as requested by Brett.” Id.
505. 859 N.E.2d 388 (Ind. Ct. App. 2006).
506. The consent of the youngest child was not at issue as he was not yet fourteen years old.
Id. at 389. However, because “it would not be in the best interests of W.D.H. to have a different
mother than his older brother, the court also denied the adoption petition as to W.D.H.” Id.
507. Id.
508. IND. CODE § 31-19-9-1(a)(5) (2004).
509. J.E.H., 859 N.E.2d at 389-90.
510. Id. at 390.
511. 859 N.E.2d 1215 (Ind. Ct. App. 2006).
512. Id. at 1216-17. The Silbernagels were contacted by the father of the children and asked
to care for them after he was unable to contact their mother while he was facing criminal
prosecution. Id.
513. Psychological counseling was sought after the children began exhibiting sexualized
behaviors and had emotional outbursts. Id. at 1216.
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the father parenting time514 with the children upon his release.515 The
Silbernagels petitioned the court for permanent guardianship over the children,
which was set for hearing.516 The father appeared at the hearing and requested
parenting time with the children at his place of incarceration.517 His request was
denied, and the guardianship petition filed by the Silbernagels was granted.518
After the hearing, the father ended all communication with the children.519 Just
under one year later, the Silbernagels petitioned to adopt the children.520 On
December 29, 2005, their petition was granted.521 The father appealed.
Indiana law waives the requirement of consent to the adoption of a child
under certain circumstances, one of which is based on a voluntary lack of
communication between a parent and child for a period of at least one year.522
In this situation, while the court did not grant the father visitation with his
children while he was incarcerated, nothing hindered his ability to communicate
with the children by telephone or mail.523 The Silbernagels had the burden to
prove by clear and convincing evidence that the father was unfit to be a parent
to the children and that waiving his consent was in their best interests.524 The
court of appeals affirmed the trial court’s decision to grant the adoption and held
that “there is clear and convincing evidence to support the trial court’s
determination of [the father’s] parental unfitness, and that dispensing with his
consent to the adoptions would serve the [c]hildren’s best interests.”525
B. Grandparent Visitation Rights After Parent’s Adoption
As a matter of first impression before the court of appeals, In re
Guardianship of J.E.M.526 addressed whether a mother’s adoption by her second
514. The denial of parenting time was made pending an investigation into the behaviors by the
children after reports of the allegations were made by the therapist. Id.
515. Id.
516. Id. at 1217. The hearing was on August 29, 2003. Id.
517. Id.
518. Id.
519. Id.
520. Id. The petition was filed on August 16, 2004. Id. The trial court held hearings on their
petition on August 17, 2005, October 12, 2005, and November 2, 2005. Id.
521. Id.
522. Id. (citing IND. CODE § 31-19-9-8 (a) (2004)).
523. Id. at 1218. The father asserted that he did not attempt to communicate via telephone or
mail because the Silbernagels “would have thwarted his efforts.” Id. While it is true that the court
would have considered any such thwarting by the Silbernagels had it occurred, the court held the
father’s contentions that they would have done so when he had not put forth the effort was purely
speculative. Id.
524. Id. at 1217-18 (citing IND. CODE § 31-19-9-8(a)(11) (2004); In re Adoption of M.A.S.,
815 N.E.2d 216, 219 (Ind. Ct. App. 2004)).
525. Id. at 1218-19.
526. 870 N.E.2d 517, 518 (Ind. Ct. App. 2007).
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cousins could serve to sever the ties between her biological mother and her son.
In J.E.M., the child’s biological grandmother, Handshoe, was appointed the
child’s guardian with his mother’s consent in June 2002.527 The child resided
with Handshoe until her guardianship was terminated in February 2005.528 At the
time the guardianship was terminated, Handshoe was granted visitation rights of
J.E.M.529 J.E.M.’s mother, Ridgway, was adopted by her second cousins, Jack
and Joyce Mueller, in April 2005.530 Under the basis that Handshoe was no
longer J.E.M.’s grandmother because his mother had been adopted, Ridgway
filed a “Verified Motion for Termination of Grandparent Visitation” in
September 2006.531 The petition failed to make any claims regarding the
termination of visitation being in the child’s best interest.532 The trial court
granted Ridgway’s motion and terminated Handshoe’s visitations with J.E.M.533
Handshoe appealed the trial court’s denial of her motion to correct error.534
Although Handshoe’s original visitation order was not in compliance with
the Grandparent Visitation Act,535 the court of appeals treated the order as if it
had complied due to the lack of objection to the order at the time it was issued.536
Aside from statute,537 trial courts are directed by Indiana case law as well as the
United States Supreme Court538 when it comes to the issue of grandparent
visitation.539 Indiana court opinions also provide ample guidance and history in
the area of a child’s adoption and how that affects the rights of the
grandparents.540 However, the “question of the effect of an adult parent’s
adoption on the ability of a biological grandparent to seek visitation with his or
her grandchild” was a matter of first impression in Indiana.541 The court of
527. Id.
528. Id.
529. Id. Handshoe was granted visitation privileges with the child one weekend per month.
Id.
530. Id.
531. Id.
532. Id.
533. Id. at 518-19.
534. Id. at 519.
535. See IND. CODE § 31-17-5 (2004 & Supp. 2007).
536. J.E.M., 870 N.E.2d at 519. The only issues were questions of law, not fact. Id. at 520.
Therefore, the issues in this appeal would be handled de novo, with no deference to the trial court.
Id. (citing Harris v. Harris, 800 N.E.2d 930, 935 (Ind. Ct. App. 2003)).
537. IND. CODE § 31-17-5-1(a)(3) (2004) (allowing grandparents to seek visitation with a
grandchild born out of wedlock); id. § 31-17-5-2(a) (providing a court may grant grandparent
visitation if it determines that visitation is in the best interests of the child); id. § 31-17-5-7
(providing grandparent visitation may be modified or terminated upon a finding of the child’s best
interests).
538. See Troxel v. Granville, 530 U.S. 57 (2000).
539. J.E.M., 870 N.E.2d at 520.
540. Id. at 520-21.
541. Id. at 521.
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appeals looked to Florida for guidance in this matter.542 Ridgway requested that
the court view her adoption as an adoption of her son as well, in effect severing
the natural ties with Handshoe.543 The court of appeals disagreed with Ridgway’s
analysis and concluded that there was not an automatic severance of the
relationship between Handshoe and J.E.M.544 The matter was remanded to the
trial court for consideration under the best interests of the child standard
presented by the Grandparents Visitation Act.545 The court of appeals noted that
while there is not an automatic severance of ties between Handshoe and the child,
the trial court may take the circumstances into consideration when looking at the
best interests of the child.546 Furthermore, the court of appeals observed “that
Handshoe would not be able to seek visitation with any children of Ridgeway
[sic] born after her adoption by the Muellers.”547
542. Id. A Florida court held that “‘the adoption of an adult who has children in being at the
entry of judgment of adoption does not operate to sever the relationship of those children with their
natural relatives.’” Id. (quoting Worley v. Worley, 534 So. 2d. 862, 863 (Fla. Dist. Ct. App.
1988)).
543. Id. at 522.
544. Id.
545. Id.
546. Id.
547. Id.